132 So. 411 | La. | 1931
Thomas T. Atterberry was married to Aggie Elizabeth McAlpine, and of this marriage five children were born, of whom the plaintiff is one. Mrs. Atterberry died intestate about September 28, 1920. At the time of her death the community property was appraised at $327,220.47 and the debts were found to be $113,320; thus leaving a net estate of $213,900.47, of which plaintiff was entitled to one-tenth, or $21,390.04.
Plaintiff being then a minor, her father qualified as her natural tutor, and also had adjudicated to himself her interest in the estate at its net value, under the provisions of Rev. Civ. Code, art. 343. And to relieve himself of the general mortgage resulting from these proceedings he gave a special mortgage on certain properties for the said sum, to wit, $21,390.04.
For some unexplained reason the adjudication, which had first taken place in 1921, and the proceedings relative to the special mortgage, were again repeated in 1923, and again on January 4, 1924.
He thereupon produced this bond to the judge of the district court and caused said special mortgage to be canceled against his property and afterwards disposed of it.
It is said that the tutor acted in good faith, believing that the bond he furnished was a bond for price of adjudication, and not merely for his faithful administration. That is of no consequence; the fact is that he allowed or even procured the cancellation of the mortgage, and that was maladministration. He and his surety are therefore liable for whatever damage the minor suffered by his said act.
We do not think the case of Bedell v. Hayes, 21 La. Ann. 643, is applicable. That case holds that where the price of adjudication consisted in part of the price of slaves, it must be reduced pro tanto, on the ground that the price of slaves could not be recovered after emancipation even though the adjudication had taken place before emancipation. *889 It followed the case of Wainwright v. Bridges, 19 La. Ann. 234, where it was held by a much divided court that such a recovery was against public policy.
And as interest is the creature either of statute or of contract, no interest can be allowed in this case except from the date of final account, February 23, 1928. See Rev. *890
Civ. Code, art.
But as we do not allow plaintiff the full amount of her claim, she cannot recover the 10 per cent. allowed by said act.