Ashbey v. Ashbey

• Decision Date: 01 February 1889
• Docket Number: 10,213
• Citation: 5 So. 539,41 La.Ann. 102
• Court: Louisiana Supreme Court
• Parties: MARY J. ASHBEY, TUTRIX, v. JOSEPH H. ASHBEY ET AL

5 So. 539

41 La.Ann. 102

MARY J. ASHBEY, TUTRIX, v. JOSEPH H. ASHBEY ET AL

No. 10,213

Supreme Court of Louisiana

February 1, 1889

Rehearing refused.

APPEAL from the Civil District Court for the Parish of Orleans Monroe, J.

J. S. &amp J. T. Whitaker, for Plaintiff and Appellee.

A. J Lewis, for Defendants and Appellees.

Armand Pilie, Curator ad hoc, for absent Defendant.

OPINION

POCHE, J.

This is a revocatory action brought by the tutrix of a judgment creditor of the defendant, Joseph Ashbey. Its object is to annul a conventional mortgage executed by said Ashbey in favor of his son, Louis Ashbey, and of his daughter, Martha B. Ashbey, wife of William P. Healey, and intended to secure them in an indebtedness of $ 5606 19, due to them by their father as the usufructuary of their shares of the property hitherto belonging to the legal community existing between their said father and their deceased mother.

The main ground of attack is that the assailed mortgage was fraudulently intended to defeat plaintiff tutrix from recovering the amount due to her minor child in her judgment against Joseph Ashbey, who owed nothing to the mortgagees, and who was at the date of the mortgage, helplessly insolvent, to his own, and to the knowledge of the other contracting parties.

The prayer of the petition is for the nullity of the mortgage, in so far as it relates to the rights of the complaining creditor, and to subject the property to the ranking judicial mortgage of the minor, who is the real and only plaintiff in the suit.

The defense is a general denial and the plea of prescription of one year, under the provisions of Article 1987 of the Civil Code, which reads as follows:

"No contract made between the debtor and one of his creditors for the purpose of securing a just debt, shall be set aside under this section, although the debtor were insolvent to the knowledge of the creditor with whom he contracted, and although the other creditors are injured thereby, if such contract were made more than one year before bringing the suit to avoid it, and if it contain no other cause of nullity than the preference given to one creditor over another."

The assailed mortgage was executed on the 20th of May, 1885, and the present action was brought on the 29th of March, 1887.

The judgment of the District Court was in favor of plaintiff, and defendants appeal. Under our understanding of the pleadings, the issues presented in the case involve the discussion of the three following questions:

1. Did Joseph H. Ashbey owe a just debt to his two children, Louis and Martha Ashbey, in May, 1885, when he granted them the mortgage assailed, and was such mortgage merely a preference of one creditor over another?

2. Are the provisions of Article 1987 of the Civil Code, which limit the revocatory action within one year, applicable to minors?

3. If so, has the plaintiff done any act which suspends the operation of the law as to his present action?

I.

The pertinent facts bearing on the point of discussion are substantially as follows:

The succession of Martha B. Ashbey, wife of Joseph H. Ashbey, and the mother of the other two defendants, was opened in the proper court in May, 1857, at which time both of said defendants were minors.

On the petition of Joseph H. Ashbey, as surviving partner in community, in which he urged his claim to hold in usufruct the shares of the community accruing to the minor children, issue of the marriage, and in which he prayed that their interest aforesaid be adjudicated to him at the price of inventory thereof, a family meeting was convened and held in behalf of said minors to deliberate on the subject matter.

On the recommendation of the family meeting, whose proceedings were duly homologated, judgment was rendered in favor of the prayer of the petitioner.

The judgment, not only operated the adjudication as prayed for, but it liquidated the interests of the minors, which were fixed at $ 5605 18, and "remitted" the matter to a designated notary public in order to complete the adjudication.

The judgment was signed on January 23, 1858, and the notarial act, which it contemplated, and in which the minors were represented by their under-tutor, was executed on the 23d of September of the same year; it was registered in the proper office on the 29th of the same month.

It then appears that, on the 21st of April, 1885, Louis Ashbey and Martha B. Ashbey Healey, who had become of age and who had left the State, brought suit, in the United States Circuit Court, against their father, for judgment in the sum of $ 5605 18, annexing to their petition a copy of the notarial act just referred to, and which, in legal effect, was but a repetition of the judgment of January 23, 1858, by which their claims against their father had been determined and fixed. In that suit Mary J. Ashbey intervened in her own right and as the natural tutrix of her children, for the purpose of resisting plaintiffs' claim, to which she interposed numerous objections, all resting on a claim, which she was then pressing in a State Court, against Joseph H. Ashbey, the common debtor, including among her pleas that of the prescription of four and ten years in bar of plaintiffs' right of recovery. A judgment by default was rendered against the defendant, but the case proceeded no further, and it is yet undecided, the default having never been confirmed.

It was at this juncture that the act of mortgage between Joseph H. Ashbey and his two children was executed on the 20th of May, 1885.

The judgment in the State Court, in favor of Mary J. Ashbey, Tutrix, vs. Joseph H. Ashbey, rendered on May 11, 1885, and which was held in suspense by a motion for a new trial, was not signed before the 29th of that month.

Hence plaintiff realized the necessity of removing the mortgage of May 20th as an obstacle in the way of her minor son's judgment, and to that end is her present action.

In her petition herein she recites some of the facts and incidents hereinabove stated, including the allegations contained in her petition of intervention in the Federal Court, and she attacks the mortgage of May 20th as a fraud against her minor son, and as a fraudulent device to defeat her son's rights under his judgments, and she concludes with a prayer for a decree setting aside said mortgage, and deciding it to be, "so far as relates to petitioner, tutrix, etc., fraudulent, null and void, revoking said mortgage and setting it aside and declaring all the property mentioned in said act of mortgage, etc., to be subject to the judgment of petitioner aforesaid, etc., etc." We conclude from the prayer, as just quoted, that the suit is simply the revocatory action as defined in our code.

Hence it follows, as already stated, that the first point of investigation is to ascertain what was the real status of the indebtedness, if any, of Joseph H. Ashbey to the mortgagees at the date of the mortgage.

For the purposes of this case, under the restricted issues to be discussed, it is unnecessary to determine whether the mortgage resulting from the judgment of adjudication of January 23, 1858, had been preserved by inscription and timely re-inscription. No claim is pressed under that mortgage. The vital question is whether the indebtedness resulting from the judgment was, or not, alive at the date of the mortgage herein assailed.

The fundamental error of the judgment appealed from, the reasons of which are made part of their brief by plaintiffs' counsel, consists in considering, as an issue in the case, the plea of prescription of four years, as a bar to any claim in favor of Louis and Martha Ashbey against their father, growing out of the tutorship.

In this case plaintiff has entirely failed to set up any plea of prescription at all. The only allusion to prescription, in her petition, is contained in the recital of her pleadings as intervenor in the case in the Federal Court. There the plea was made, as hereinabove stated, and there alone it is entitled to consideration and discussion. Courts cannot supply the plea of prescription, C. C. 3463, and a statement in pleadings that a plea of prescription was interposed in another suit, in a different court, although between the same parties, and affecting the same rights, cannot be construed as a sufficient plea in the action under consideration.

The next error of the judgment, which flows as a corollary from the principal or main fallacy, lies in the contention that the indebtedness which Ashbey was intending to secure by the assailed mortgage grew out of his tutorship of his co-defendants. From the mortuary proceedings had in the settlement of his wife's succession, which are not assailed, which could not be assailed collaterally, and which took place at a time not suspicious, it clearly appears that the indebtedness of the father to his children grew out of the usufruct of their shares of the community property, and not out of the tutorship. It appears from the inventory that the deceased wife and mother owned at least one piece of separate and movable property, which the survivor kept, and that the estimated value of that property did not figure in the proceedings which liquidated the minors' interests in the community.

His accountability for that property would result from the tutorship, but as regards the one-half of the community property, his liability grows out of his usufruct, and it has been fixed by the judgment of January 23, 1858, as a debt due for the purchase price of the minors' shares of said property, which he withheld under the law. And for such an account the prescription of ten years only could have prevailed. Cochran vs. Violet, 38 Ann. 525.

But that prescription is not pleaded in the case, and...