Bourgeois v. Ducos

• Decision Date: 24 January 1966
• Docket Number: No. 6543,6543
• Citation: 182 So.2d 539
• Parties: Pierre BOURGEOIS, Jr., et al. v. Odom B. DUCOS et al.
• Court: Court of Appeal of Louisiana — District of US

Page 539

182 So.2d 539

Pierre BOURGEOIS, Jr., et al. v. Odom B. DUCOS et al.

No. 6543.

Court of Appeal of Louisiana, First Circuit.

Jan. 24, 1966.

Guzzetta & LeBlanc, Thibodaux, for appellants.

Pugh, Lanier & Pugh, Peltier & Peltier, Wollen J. Falgout, Deramee & Deramee, Thibodaux, for appellees.

Before ELLIS, LANDRY, REID, BAILES, and F. S. ELLIS, JJ.

LANDRY, Judge.

This is a petitory action in which plaintiffs request recognition as owners of an undivided one-half interest in certain real property situated in Lafourche Parish and formerly belonging to the community of acquets and gains existing between plaintiff's ancestors, Pierre Bourgeois and his wife, Marie Josephine Gaude, but which property was sold to pay succession and community debts in the administration of the estate of Marie Josephine Gaude Bourgeois while her said husband was still alive. In essence plaintiffs contend Pierre Bourgeois never disposed of his one-half interest in subject property during his life-time consequently they are now the owners of said fractional interest by inheritance. Petitioners pray that the above mentioned succession sale and several subsequent transactions dependent thereon be decreed absolutely null, void and of no effect insofar as they may purport to adversely concern the undivided interest herein claimed by plaintiffs in the subject property.

Defendants, the present record owners of the property in dispute, filed exceptions of no right and no cause of action which were sustained by the trial court. From the judgment sustaining said exceptions and dismissing plaintiffs' demands, plaintiffs have appealed.

In both brief and oral argument before this court able counsel for appellant maintains our learned brother below erred in: (1) Holding that the undivided interest of a surviving husand in community may be validly disposed of by the administrator of the deceased wife's succession to pay community obligations; (2) Concluding that the surviving husband in community Pierre Bourgeois, participated in the distribution of community assets pursuant to a reputed division thereof appearing in the deceased wife's succession; (3) Determining that the nullity, if any, of the sale of the surviving husband's one-half interest was a relative nullity subject to the rules of prescription; and (4) Supplying a plea of liberative prescription or estoppel not expressly advanced by defendants.

Defendants' exceptions of no right and no cause of action contain identical terminology presenting two basic contentions. First, that the judgment of the court ordering the sheriff's sale of community property upon application of the administrator of the Succession of Marie Josephine Gaude, deceased wife of Pierre Bourgeois, to pay debts of the wife's succession, is res judicata. In this regard we note the judgment referred to was an ex parte decree signed in chambers by the Clerk of Court in the absence of the presiding judge . Second, it is argued that if the aforesaid sheriff's sale was ineffective as to the undivided interest of the surviving husband in community, Pierre Bourgeois, his said interest in the subject property subsequently accrued to the purchasers at the sale by virtue of the doctrine of after acquired title.

It is of further note that six of the named defendants have answered plaintiffs' complaint asserting an undivided one-half interest in the property in dispute and, alternatively, full ownership of the 'lower' half thereof and have also incorporated in said answer pleas of acquisitive prescription of 10 and 30 years. Since the suit did not progress to trial on the merits in the court below, but rather was disposed of upon the exception of no right and no cause of action as herein previously noted, the hereinabove mentioned pleas of acquisitive prescription are not before us on this appeal, consequently a more detailed consideration thereof would serve no useful purpose at this time.

Our esteemed colleague below found that the record of the Succession of Marie Josephine Gaude, deceased wife of Pierre Bourgeois, the original of which was introduced in evidence herein, establishes the following events and circumstances attending the sale of subject property:

'The succession record shows that the property was inventoried, and that Joseph Bourgeois, one of the heirs was appointed and qualified as administrator; that debts were due by the succession, among them being 'a note signed by Pierre Bourgeois, the husband of the decedent, and head of the community'; and that all of the property, except certain household furniture was ordered sold on September 6, 1882; that the same was so sold as alleged by plaintiffs; that thereafter a Final Account and a Tableau of Distribution was filed by the administrator, fixing a proposed distribution to Pierre Bourgeois, 'as partner in community', of one-half of the net proceeds of the sale after the payment of debts and providing that the other half of the proceeds be distributed in equal portion to the five children, which Final Account and Tableau was 'regularly fixed for trial, was taken up and tried, and the law and the evidence being in favor of the administrator and no objection having been filed', and was ordered adjudged and decreed approved and homologated on October 29, 1887.'

In addition, our learned brother of the trial court held the succession sale valid in every respect upon authority of the following quotation from a commentary on Creditor's Rights, Priority of Community Creditors, by Carl W. Kavanaugh, appearing in Volume XXV, Louisiana Law Review, Pages 224--226:

'The priority of the community creditor is superior to any claim of ownership on the community property by the surviving spouse or the heirs of the deceased spouse. The question has frequently been litigated in regard to the priority of the community creditor over the wife's interest in the community. The wife's interest was repeatedly characterized as 'residuary' prior to the decision in Phillips v. Phillips that the wife was an 'owner' of an interest in the community at every moment of its existence. The two concepts are not incompatible, for dessignating the wife's interest as 'residuary' merely restates the proposition that the wife's claim to one-half of the community is subordinate to the claims of community creditors. That the wife's claim is residuary in this sense is easily demonstrated. If the wife accepts the community, she is liable for half of its debts. More fundamentally, the wife's claim is one-half the community of gains, and the existence of gains cannot be determined until the debts and losses are paid. Thus the wife is an owner, but her ownership is analogous to that of a partner, subject to divestment by partnership creditors. The interest of the husband is precisely the same in this respect.'

Appellants herein were deemed estopped to assert any claim of ownership to the property in question upon the finding of the trial court that the surviving spouse in community and all heirs of decedent Marie Josephine Gaude Bourgeois participated in the distribution of community assets following the judicial sale of subject property. On this premise the learned trial court concluded, 'and their descendants are hardly in a position to question it after more than three-quarters of a century.'

Our own examination of the record fails to disclose the presence of circumstances justifying the above conclusion. The proceedings had in the Succession of Marie Josephine Gaude Bourgeois show no appearance by the surviving spouse or any heir of decedent other than the administrator who was decedent's son. It appears the application for administration was ex parte considering no other party joined or acquiesced therein. The record does not show a discharge of the administrator consequently it is not certain the proposed distribution of remaining assets was actually consummated.

The final account of the administrator lists a total of ten items including the $124.00 community obligation for the discharge of which the property was ordered sold, together with nine other debts incurred by decedent's succession subsequent to decedent's death in connection with the administration of decedent's estate. The aggregate of said obligations was subtracted by the administrator from the proceeds of the sale of subject property and the tableau of distribution proposes the allocation of one-half of the remainder to the surviving husband and one-tenth thereof to each of decedent's five surviving children. It is clear, therefore, the tableau proposed the surviving husband would bear one-half the cost of decedent's succession instead of charging all costs incidental to the wife's succession against that portion of the fund allocable to her estate for distribution to her heirs. The husband's share of the community is not amendable to the claims of creditors of the wife's separate estate. It is to be further noted that the account lists total liabilities in the sum of $213.70 whereas our own mathematical computation discloses the enumerated items aggregate $313.70. The administrator's final account further indicates the proceeds from the sale amounted to $447.25, leaving a distributable balance of $235.55, (which should correctly have read $135.55 according to the error previously noted herein), which said balance the tableau proposes to allocate to the surviving spouse and heirs. Considering the administrator did not have on hand funds sufficient to distribute in the manner shown on the tableau because of the mathematical error patent on the face thereof, it is clear a distribution in accordance with the tableau and judgment of homologation was not possible. Moreover, the record does not affirmatively show what distribution, if any, was actually made as the succession proceedings are devoid of receipts from either the surviving spouse or any heirs. Again, the tableau states certain items of movable property listed in the...