47 La. Ann. 1334 | La. | 1895
Lead Opinion
The opinion of the court was delivered by
Counsel of plaintiffs, on the argument, conceded that their demand was barred by prescription unless they could succeed in sustaining the position contended for by them that the only prescription applicable to it was that of thirty years.
They contend that the present is substantially a petitory action; that the property of the succession is in the illegal possession of defendant, under guise of a succession administration which had no reality but was a fraudulent simulation concocted by him to despoil the widow and heirs of the deceased of their p; operty; that without authority he opened the succession and employed an attorney to conduct the mortuary proceedings, who, under false representations received from his employer, made to the court recitals of fact which were absolutely without foundation, to the effect that the deceased was heavily indebted to him; that on the strength of these false statements the court was induced to issue an order for the convocation of a family meeting on behalf of the minors to consider the necessity and propriety of a sale of the real estate in order to pay his and other claims against the succession; that the family meeting
That he availed himself of his intimate connection with the family to obtain possession of papers of the deceased upon which, so obtained, he bolstered up an unfounded claim against the succession, and that the case presents a condition of affairs such as to throw it under the decisions of this court in Bledsoe vs. Irwin, 33 An. 615, and Gillespie vs. Twitchell, 34 An 288.
In view of the gravity of the charges brought against defendant, and the fact that they were sustained by the judgment of the District Court, we have examined the testimony in this ease with special care, and we have reached the conclusion that the judgment can not stand. In the first place, there is nothing to warrant the statement that defendant’s relations toward Simonin and his famly were fiduciary, or that he ever obtained possession of papers illegally or improperly.
There is no doubt that the relations between all parties up to the death of Simonin, and for some time thereafter, were close and intimate, such as would naturally arise and be found between relatives, but nothing more. It is a mistake, we think, to speak of Simonin as the benefactor of the defendant. He seems, from the time he reached New Orleans, to have been industrious and self-supporting, and at the date of Simonin’s death he was a man of means.. He had unquestionably received from Simonin various acts of kindness, it being shown for instance that when wounded as a soldier he was an inmate for some time of his house. For some
Defendant testifies that he was employed actually by Charles Parker,Mr. Simonin’s nephew, and that he recommended him. Her action (after a petition had been filed in her name, asking for confirmation as natural tutrix) in going forward and taking and subscribing her oath as tutrix indicate clearly that she was advised of the petition. It can scarcely, we think, be asserted, after a tutrix and under-tutor had been qualified, that the administration was a “pure simulation.” The succession was certainly “ opened” independently of any question as to whether the attorney who had invoked the court’s action was individually specially authorized in that behalf or not.
In the next place it is clearly shown that the widow and tutrix was informed of the fact that defendant claimed to be a creditor of the succession, and that a sale would be sought in order to pay those claims. A family meeting was convoked, of which her two stepbrothers (the Konigslows) and her nephew, Charles Parker (who was an inmate of her family), were members. Not only this, bub the under-tutor of the minors (who was their uncle) was present, approved of the proceedings and signed the same. Ignorance of this particular proceeding by the tutrix under such circumstances would be hard to believe. It is attempted to be shown by the two Konigs
This course has been several times recognized as one authorized
It is charged that there was no debt due to Czarnowski at the time of the family meeting and sale. We think differently. He held possession at that time of a mortgage note of the deceased which had been secured by mortgage on this very property, and on the trial of this cause he produced the note and swore positively to the fact that he had himself, taken it up and paid it for Simonin in 1868, shortly before his death. He further swore that he had made several payments of interest upon the note, for the benefit of Simonin. He had also taken up a due bill of eight or nine hundred dollars, due by Simonin to his sister-in-law, Mrs. Parker.
Plaintiffs seek to avoid the effect of this testimony as to the mortgage note by showing that in the account filed by the executor of the succession of Pennison in 1864, this note, which had belonged to that succession, was put down as having been already at that time collected by the executor. We think this attack has been successfully met by the signed endorsement of Simonin himself on the note in 1867, showing that it was on that date extended as to payment to January, 1868. We think it quite likely, as suggested by defendant’s counsel, that the executor, willing to consider, did consider the note as so much cash in his hands, and settled with the heirs on that basis, keeping the note himself.
We need not go into any critical examination of the amount due to Czarnowski at the dates of the family meeting, or the sale, for the reason that in so far as the validity of the sale was concerned it would stand even if the amount due him was less than he claimed it to be. The succession undoubtedly had no funds in hand, and it owed debts to some extent independently of the debt* due to Czarnowski. The property was properly sent to sale to pay those debts, and if Czarnowski’s claim was smaller than he asserted it to be, the effect of that fact would be not to undo the adjudication, but to charge him with any difference there would be between the amount of his bid,
He would simply have come under a money liability for so much of the purchase price as remained unpaid, and prescription would run in his favor from the date of the homologation of the account. If prescription was permitted to accrue, the tutor was responsible for it.
Plaintiffs say it is a strange fact that the amount placed in the account as due to the defendant should have been the exact amount necessary to absorb the balance of the assets left after the payment of the privileged claim, but we see nothing suspicious in that circumstance. He had claimed to be a creditor for over nine thousand dollars, and he still claims to have been such, but as the succession was insolvent there - was no necessity to make him figure on the account for an amount larger than he could ever possibly get.
Plaintiffs say the account was homologated without the production of vouchers. This would have been of importance on an appeal, but it loses its force in an action of nullity.
The tutor and under-tutor, after the sale, both signed the final account which the tutrix presented, in which Czarnowski’s claim was recognized and ordered to be paid by the court, and after everything was closed the tutrix presented to the court, in the matter of the succession, not through John J. Finney, but through Hornor & Benedict, as her attorneys, a motion in which the fact is stated that the property of the succession had been disposed of; that it had been found insufficient to pay its debts; that there remained nothing for the minors, and that the mortgage securing her tutorship sh uld, therefore, be canceled on a piece of property in which it seems it was found she had an interest. It is claimed in this instance, again, that the attorneys who represented her had not been employed by her, but her mother; but her brother’s testimony shows the contrary. It was he who employed the attorneys, and he did so after consultation with, and with the consent of, his sister. It is not pretended they were employed by Czarnowski. We do not understand how it can be claimed that the administration of a succession was in any sense a fictitious administration, which was opened by the appointment and confirmation of a tutor and under-tutor, evidenced
The court below seems to have placed the defendant in the position which he would have occupied at the opening of the succession, claiming to be a creditor with his claim resisted by the widow and tutrix. Obviously this is not the position he occupies. McGehee vs. McGehee, 41 An. 657. The plaintiffs are attacking and seeking to undo accomplished facts twenty-three years after they have taken place, through regular judicial proceedings, and it is not astonishing that defendant was unable to remember or to answer the many questions propounded to him under a most rigid cross-examination, many of which questions were as to collateral and irrelevant facts.
In order to sustain plaintiff’s theory of the facts of this case, both forgery and perjury would have to be proven by them. There is nothing in this record, in our opinion, to justify the charges brought against defendant’s good name.
For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the defendant, against the plaintiffs, rejecting plaintiffs’ demand and dismissing their suit, with costs in both courts.
Rehearing
On Application for Rehearing.
This is a suit for the annulment of a judicial sale of certain real estate situated on Thalia street, in the city of New
Plaintiffs’ prayer is for judgment revoking the proceedings of the family meeting leading up to the order of sale, and the order of sale as well; and also condemning defendant to pay nine hundred dollars per annum rent since date of aforesaid sale.
The principal reasons assigned in the petition are that the recom - mendations of the family meeting of September 4, 1868, favoring a sale, and suggesting the necessity thereof, were solely predicated upon the fact that the deceased was indebted to the defendant, and that, upon those representations, the order of sale was granted, directing a sale to be made upon terms to correspond with the recommendations of the family meeting.
That at the sale the property in question was adjudicated to the defendant, ostensibly for five thousand dollars in cash, whereas the terms proposed by the family meeting, were one-half the price in cash, and the balance on a credit of one year, with interest.
. That in fact deceased was not indebted to the defendant, but through fraud and ill-practices he induced the erroneous belief that deceased was indebted to him, and, through their fraudulent representations, defendant inducéd the surviving widow and tutrix to sign an account of administration recognizing said debt.
That the statement in the account, as well as that in the deliberations of the family meeting, was made in error, and through the defendant’s misrepresentations and procurement.
For the foregoing reasons, mainly, plaintiffs allege that the sale to the defendant was a fraudulent simulation in the form and under the guise of a judicial proceeding and sale, suggesting some few irregularities, which are curable by five years’ prescription.
After tendering quite a number of exceptions and dilatory pleas, defendant made an answer, which was practically a general denial.
It is evident that the main question in the controversy was, and on this application must be, the existence vel non of an indebtedness of the deceased and of his succession to the defendant at the time the order was granted, and the sale of the property occurred. All else, at this late day, more than twenty years after the adjudication, must be esteemed of but little moment, in defendant’s title.
The District Judge, in his reasons for judgment, recognized this to be the controlling question in the case, for he says:
Taking this as the initial point in the controversy, what are the grounds on which he sustains plaintiffs’ claims and gives them a judgment?
He starts out with the proposition, that as Mrs. Simonin was contradicted, he disbelieved her testimony, and for certain reasons he viewed the testimony of the defendant with the greatest caution.
He then assigns as his reasons why he disbelieved in the existence of the defendant’s claim: (1) That no statement of this indebtedness was furnished until after the adjudication, and when filed it gave no particulars; (2) that by defendant’s own account, the deceased owed defendant only eight hundred and eighty dollars and sixty-seven cents on June 27, 1867, prior to his death, whereas it was increased to five thousand six hundred and eighty-two dollars and sixty-six cents after his death, and this included one thousand five hundred dollars and interest on a mortgage note; and this item seems to have been paid on the 29th of January, 1869, after the filing of the final account; (3) that it is shown by the records of the Peniston succession that the mortgage note in question was paid before the death of the deceased; but the judge stated that he could not, at the time he prepared his reasons, find any of the records of the succession of Peniston after diligent search.
These are all. He then adds:
“ On the whole, and without entering into a critical analysis of the testimony and other evidence * * * I am now satisfied of the correctness of the impression left on my mind at the close of the trial, that there existed in favor of Czarnowski no claim against Simonin at the date of his death.”
Our opinion takes up and fully and satisfactorily disposes of the matter by the statement that, prior to the death of Simonin, the defendant took up the mortgage note of the deceased; and that he retained it in his possession and produced it on the trial, and supported the correctness of this assertion by his sworn evidence. He further
With regard to the payment of the note to the succession of Peniston, to which it belonged, our opinion says this attack “was successfully met by the signed endorsement of Simonin himself, on the note in 1867, showing that it was on that date extended as to payment to 1st of January, 1868,” as contradistinguished from the allegation that it was paid in the Peniston succession in 1864.
This relation of proven and indisputable facts puts a quietus on the question of debt, and on the crucial question proposed by the District Judge; consequently the irresistible conclusion was, and still remains, that judgment ought to go in the defendant’s favor on the title.
We note, in this connection, that this question is not mooted in either the application or brief for rehearing. Its correctness thus stands confessed.