Xanpi v. Orso, 11 La. 57

Xanpi v. Orso

11 La. 57 | La. | 1837

Bullard, J.,

delivered the opinion of the court.

In this case the plea of prescription has been interposed in the Supreme Court, and our only inquiry is, whether the evidence in the record shows that the debt sued for has been extinguished by prescription.

The origin of the debt is as follows: On the death of the ° plaintiff’s father, all the property held in community was * adjudicated to her mother, the defendant, at the price of estimation, she binding herself to pay to each of the children their shares respectively. This adjudication took place in 1805; the plaintiff was born on the 24th May, 1789, and consequently attained the age of majority in 1810; at that time her share became due and demandable, and this suit was instituted on the 4th of June, 1835. The plaintiff resides out of the state.

It is contended by the counsel for the appellee, that by the ^ 1 1 J J Spanish law which was in force before the promulgation of the Louisiana Code, the prescription of thirty years applied, *60inasmuch as the debt was hypothecary, and he relies on the 63d law of Toro; the text of that law appears to support him in that position, although the action in this case is personal, the obligation sought to be enforced was by agreement secured by mortgage on the property sold.

Before the promulgation of the Louisiana Code, the 20th May, 1825, hypothe-cary debts were prescribed by the lapse of thirty years, while the period fixed by the code, is ten years, if the creditor resides in the state, and twenty if he lives out of it: So, where a debt became due, and demandable the 24th May, 1810, and suit was instituted the 4th June, 1835., the plaintiff residing out of the state: Held, that the debt is prescribed; fifteen years, less four days, having elapsed under the old law, and ten years and fourteen days under the code, which is more than half the time required to complete the prescription.

Assuming the period of prescription to have been thirty years, it is clear they had not elapsed at the inception of this suit. But on the 20th May, 1825, the present code went in operation, by which the prescription in cases like the present, was reduced to ten years between persons residing in the state, and twenty when opposed to an absentee. Independently of the time which had elapsed before this change in our legislation, the twenty years required for prescription had not expired when this suit was instituted. It only remains, therefore, to inquire, whether by computing the time which preceded that change according to the term then required, and adding it to the time which has elapsed since, according to the principles recognized by this court 'in the case of Goddard’s Heirs vs. Urquhart, the prescription has been acquired. Fifteen years, less four days, had elapsed before the promulgation of the code, that is to say, nearly half the time necessary to prescribe. Two years and four days were therefore required under the new code; from May 20, 1825, the date of promulgation, to June 4, 1835, is ten years and thirteen or fourteen days, more than one half the time required under the existing law. 6 Louisiana Reports, 659. Merlin’s Repertoire, etc., verbo prescription.

We are, therefore, of opinion the prescription had been acquired, and the plea must be sustained ; and it is, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed, and ours is for the defendant, with costs in both courts.