Succession of Voorhies, No. 701

No. 701 | La. | Sep 15, 1869

Howell, J.

On the twenty-second of December, 1863, the administrator of the succession of Cornelius Voorhies, deceased, alleging that he had no funds to be distributed, filed what is termed “ a tableau of classification of said succession,” setting forth the amount of the inventory and the amounts of the mortgage, privilege and ordinary debts, which he prayed might be published and homologated.

Mrs. Cidal.ise Mouton, surviving widow, opposed the homologation on the grounds that no administration was necessary, as the property was all community property and had already been adjudicated to her lit the price of estimation; that if the said adjudication should be invalid, she should be placed on the tableau as a creditor for $30,000, paraphernal funds secured by mortgage; that should said above rights be null and void, then she should be placed on the tableau for $2000, instead of $1000 as a homestead; and she opposes all the claims on the tableau except the privileged claims, as being prescribed by one, two, three, four, five and ten years, and especially declares that the. mortgage claim of the Bank of Louisiana is prescribed by five years, and the mortgage itself is extinguished for want of reinscription.

The Bank of Louisiana also filed an opposition, alleging that the active mass of the estate should be increased by certain amounts specified; that the surviving widow, having used said amounts to pay debts inferior in rank to certain claims sot up as privileged, said claims should be disallowed, and that other claims classed as privileged, except the clerk’s bill, and all other debts, except that due tbe bank itself, are not due, and if due, are not payable out of tbe price of tbe property mortgaged to tbe bank.

Subsequently tbe said bank filed an answer to tbe opposition of tbe surviving widow, asking that tbe adjudication to ber of tbe community property on tbe twenty-second of October, I860, be declared null and void, because, at tbe time, tbe succession was and still is largely in debt, and specially contesting añ other matters sot up in said opposition.

After bearing the parties, tbe Parish Judge rendered judgment sustaining tbe opposition of Mrs. Monton, widow, etc., to tbe effect that tbe claim of the Bank of Louisiana be rejected from tbe tableau with costs of its opposition and condemning tbe estate to pay costs of tbe widow’s opposition.

From this judgment tbe bank has appealed.

Tlie first question presented for solution is the prescription of the bank’s claim which was sustained by the court a qua.

Tbe claim is based on a written instrument signed by Cornelius Voorhies and wife, and denominated a bond, and is exactly similar to tbe one sued on in the case of the same bank against D. P. Williams and wife (21 A. 121), and declared subject to tbe prescription of five years.

It is contended that the prescription of five years does not apply; that if it does, it was suspended by tbe war and interrupted by payments and an extension of payment.

Tbe two first points are settled adversely to the pretensions of the bank and we see no reason for unsettling them.

Tbe “ bond” or note is for $25,000, and was due on tbe fourth of June, 1859, and secured by act of mortgage, in which B. 0. Vignaud intervened and bound himself and bis firm of Menard & Vignaud to pay said obligation in case of default on tbe part of tbe mortgagers, and waived discussion. At tbe above date a payment of $5000 on the principal, and of tbe interest up to fourth June, 1860, was made. On tbe first July following, to wit, 1859, Cornelius Voorhies died. Joseph Menard, a witness for tbe bank, testifies that tbe firm of Menard & Vignaud were tbe commercial agents and commission merchants of Judge Cornelius Voorhies, and after bis death continued as such for widow Cornelius Voorhies; that on tbe fourth June, I860, tbe interest to fourth June, 1861, was paid by Menard & Vig-naud, and that in 1861, the bank extended the payment of interest on the bond to June, 1862. To tbe last direct interrogatory propounded to him, be says: “ Tbe last payment made by the firm on the bond-referred to, was on the fourth of June, 1860. Since then I have no other recollection of any other payment having been made on said bond for account of Mrs. Voorhies.” There is no other evidence as to tbe alleged extension.

Mrs. Voorhies, as a witness, denies that Menard & Vignaud were authorized by her to make any payment for her to the Bank of Louisiana, or that she had any dealings with 'them as her factors after they sold the crop of 1859. The firm therefore was without authority to make the payment on the fourth June, 1860, or procure the alleged extension to J une, 1862, for the debtors. The payment on the fourth of June, 1860, of the' interest to fourth June, 1861, would not, if authorized, affect the plea of prescription, as more than five years intervened between that i date and the acknowledgment of the administrator on the twenty-sixth of March, 1867. The hank however contends that Menard & Vignaud, being hound with the debtors, had an interest in effecting the extension of the payment of interest to the fourth of June, 1862, and that it being an acknowledgment Of the debt due at that date, interrupted prescription as jfco the principal debtors.

It is only the acknowledgment of one of the debtors in solido, that interrupts prescription as to the others. C. C. 8517. Solidarity is not presumed, and as Menard & Vignaud did not expressly bind themselves in solido, with the mortgagers in the act of mortgage, they are simply the security of the latter, and their acknowledgment does not have the effect claimed for it. Article 3518 C. C. says, that the acknowledgment of the principal debtor interrupts prescription on the part of the surety; but the converse is not.declared, and as there qre no other modes of interrupting prescription than those established by the Code, wo cannot apply the interruption of prescription in behalf of the security. The judge a quo did not err in sustaining the plea, and consequently the bank, the only appellant, is without interest to in-. quire into any other questions involved in the oppositions, and no one else complains, who can be heard.

Judgment affirmed at costs of appellant.