Berry v. Wagner
| Decision Date | 30 November 1921 |
| Docket Number | 22933 |
| Citation | 151 La. 456,91 So. 837 |
| Court | Louisiana Supreme Court |
| Parties | BERRY et al. v. WAGNER et al |
On Rehearing April 22, 1922
Appeal from Civil District Court, Parish of Orleans; Fred D. King Judge.
Action by Daniel Berry and others against Mrs. Pauline Wagner and others. From a judgment in favor of defendants, plaintiffs appeal.
Affirmed on rehearing.
P. M Milner, of New Orleans, for appellants Berry and others.
George Montgomery, of New Orleans, for appellees Dumas, Bacon, and others.
Milling Godchaux, Saal & Milling, of New Orleans, for appellee Cooke.
A. M. Buchmann, of New Orleans, for appellee Sellen.
Charles Louque, E. M. Stafford, and H. W. Robinson, all of New Orleans, for appellees Wagner heirs.
John B. Fisher and H. W. Robinson, both of New Orleans, for appellee Succession of Apken.
John P. Sullivan, David Sessler, and Arthur Landry, all of New Orleans, for appellees Wagner and others.
H. McCall, of New Orleans, for appellee Loubat.
Delvaille H. Theard and Charles I. Denechaud, both of New Orleans, for appellee Camors.
The four surviving children of Daniel and Elizabeth Berry are plaintiffs in a petitory action to recover a one-half interest in a square of ground bounded by Carrollton avenue, Solomon, Palmyra, and Gasquet (now Cleveland avenue) streets, in the city of New Orleans.
The property in question was community property, having been acquired by Daniel Berry from J. B. Olivier by act of sale before J. Z. Spearing September 24, 1885, duly registered in conveyance office of the parish of Orleans.
Daniel Berry, the father of the plaintiffs, died October, 1888. He left a last will and testament, in which his wife, Elizabeth Berry, inherited one-fifth of one-half of his estate. The widow and the minor children were put in possession of the estate of Daniel Berry by judgment of court, December 29, 1888, the minors being sent into possession under benefit of inventory, under judgment June 28, 1900.
After the death of Daniel Berry, his widow, Elizabeth Berry, married Arthur Climo, and Mrs. Elizabeth Climo, by decree of court on March 1, 1889, caused the undivided four-fifth interest of the minors in the separate estate of their father, adjudicated to her, as well as the undivided two-fifth interest of the said minors in the community property, under article 343 of the Civil Code, authorizing the adjudication of the property held in common by the mother and the minor children to the mother.
On May 5, 1900, Frederick Camors acquired the property in dispute by a deed from P. F. Herwig, testamentary executor of Mrs. Elizabeth Climo, widow by first marriage of Daniel Berry, and the defendants in this case acquired by mesne conveyances their respective interests in this square of ground by purchase from Frederick Camors.
It is therefore clear that if defendants have any just title to this property, the same must rest upon the validity of the adjudication to Mrs. Climo. If she did not acquire the interests of the minors by said adjudication, then the sale of the minors' interests in said property by her testamentary executor, to Frederick Camors was illegal and invalid, and plaintiffs in this case are entitled to recover.
As only the interests of the minors were adjudicated to Mrs. Climo, the adjudication was null. The Supreme Court in the case of Lyons v. Woman's League of New Orleans, 124 La. 222, 50 So. 18, said:
"Hence, it being so written in article 343 [Civil Code], the parent who wishes to acquire his minor child's share in the property held in common must cause the whole property to be adjudicated to him, or else he takes nothing by the adjudication."
The defendants, however, contend that the minors, having accepted the succession of their mother, are bound by her warranty as conveyed in the sale by her testamentary executor to Frederick Camors.
The judgment putting the minors in possession in the succession of Mrs. Elizabeth Berry, wife of Arthur Climo, shows that Daniel Berry, who was then a major, was placed in possession of his mother's estate purely and simply, but the remaining three minors were put in possession of her estate under benefit of inventory.
The plaintiffs are seeking to recover in this case, from third persons, no interest in property which they inherited from their mother, and of which they have been illegally divested during their minority; but the action which they here bring is to have restored to them their half interest in property of which they have never been divested, and which they derived from their father as his forced heirs.
2 Baudry La Cantiniere, No. 204; 4 Toullier, No. 357; Pothier, Vente, No. 175; 2 Mourlin, No. 289; 3 Marcade, Nos. 255-257.
In Tessier v. Roussel, 41 La.Ann. 474, 6 So. 542, 824, the Supreme Court said:
"We, therefore, conclude that the forced heirs, accepting under benefit of inventory, bringing their action of reduction in their own right, would not be estopped or hindered by any warranty of their ancestor which would be an exception founded on an obligation of the latter alone."
The defense of warranty is therefore unfounded.
We will next consider the plea of estoppel against the minors by reason of the fact in the settlement made by the tutor with the minors in the mother's succession, the minors must have received their part of the sale of this Carrollton avenue square.
The projet of partition shows that each of the plaintiffs was to receive his portion of the community property, including both the father's and mother's one-half of the community, after deducting the amounts received by each of said heirs, and the receipt for the money by each of said heirs is found in transcript, page 225. But nowhere do we find in said receipt or in said projet of partition any mention of the Carrollton avenue property, although we find other properties specifically referred to.
The projet of partition was filed April 26, 1901, while the receipt of plaintiffs, in the name of their attorneys, was filed December 10, 1901.
As a matter of fact, the Carrollton avenue property, being the property in litigation, was sold in 1892, as shown by the petition in the suit of Camors v. Herwig, Testamentary Executor, transcript, p. 241, for $ 2,000, and the judgment of the Court of Appeals in 1896 was complied with.
It may be assumed that at some time and in some account the testamentary executor accounted for the proceeds of this sale. There is no account which shows the fact. All the plaintiffs testify that they were never advised of anything in relation to the Carrollton avenue property.
This court, in Crain v. Tremont Lumber Co., 134 La. 276, 63 So. 901, said:
Under the facts of this case, it is clear that there was no ratification of the sale of the Carrollton avenue property, which was under private sale, even if the proceeds of said sale were accounted for in regular course and used for the maintenance and sustenance of the minors.
The defendants have pleaded the prescription of 10 years causa adquirendi. Daniel Berry, the eldest of the plaintiffs, was born August 19, 1878;...
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