Chevalley v. Pettit

• Decision Date: 30 June 1905
• Docket Number: 15,406
• Citation: 115 La. 407,39 So. 113
• Court: Louisiana Supreme Court
• Parties: CHEVALLEY et al. v. PETTIT

39 So. 113

115 La. 407

CHEVALLEY et al. v. PETTIT

No. 15,406

Supreme Court of Louisiana

June 30, 1905

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

OPINION On Rehearing.

In defendant's application for a rehearing, it is urged:

First. That the court erred in holding that George and Alice Roth, nephew and niece of Louis Edward Schreiber, and children of his predeceased sister, Mrs. Roth, did not inherit in their own right in his succession, but by representation of their deceased mother, and that said children are estopped from prosecuting a right of action derived from the succession of their deceased uncle, whose succession consists of his right of action for his one-seventh interest in the property described in plaintiffs' petition.

Second. That it erred in holding that Mrs. Roth or her children acquired "an additional interest" in said property by the death of Louis Edward Schreiber, and that said children are barred by the estoppel of warranty of their mother from prosecuting a right of action derived from the succession of their uncle Louis Edward Schreiber.

Third. That Mrs. Roth acquired no such additional interest, for she did not survive or inherit from Louis Edward Schreiber.

Fourth. That said children acquired no such additional interest, and are not barred by the estoppel of warranty of their mother, because they inherited nothing from their mother, who, as found by the court, had parted with her interest in said property before her death, and because the only interest ever acquired by said children was inherited by them directly and in their own right from their uncle Louis Edward Schreiber, without being bound by any act or obligation of their mother.

We did not err in holding that the children of Mrs. Roth did not "inherit in their own right," but inherited by representation of their deceased mother. Article 897 of the Civil Code is express on that subject. The matter was discussed and explained by us in the Succession of Meyer, reported in 44 La.Ann. 871, 11 So. 532.

Whether these children, by inheriting by representation in the succession of the uncle, became bound by the prior ratification of their mother of the proceedings taken in the two partitions, and the sales made therein, presents a different question.

On reconsideration, we think the court was in error in reaching that conclusion. In dealing with the subject of representation, the Code declares (article 894) that "representation is a fiction of the law the effect of which is to put the representative in the place, degree and rights of the person represented." This provision of the law refers to the status and situation of the party represented with reference to the particular succession in which children are claiming to inherit.

Applying the fiction of the law by assuming the continued existence of the mother of these children beyond the death of her brother, and supposing her to have been a claimant herself in that succession, no question of the warranty of the sale made in the partition suit would have entered as a factor. That question would arise only later, after her rights as an heir in the succession had been recognized, and as between herself and the party whose title she might be seeking to annul. We acted inadvisedly in enlarging the fiction so as to continue the mother's existence until after she had taken the property in her brother's succession, and to make it then pass from her to her children struck by warranty obligations thrown upon it during this fictitious ownership of hers as an heir in her brother's succession.

The error of our conclusion on the subject of the estoppel of the Roth children from contesting the proceedings and sale in the first partition suit can be, and is, recognized without the necessity of a rehearing. But our doing so requires at our hands consideration of the grounds of objection raised by the defendant which we failed to pass upon.

An examination of the pleadings and statement of facts will show that there were two partition proceedings in which Mrs. Schreiber acted for and on behalf of Louis Edward Schreiber as his tutrix. The first proceedings and the sale thereunder are questioned herein. The second proceedings and sale are not. We direct our attention to the grounds of the objection urged against the first partition proceedings, and the sale made thereunder. These objections all go to the want of authority of the mother to have represented Louis Edward Schreiber, and to a claim that they were not properly made parties to that proceeding.

We see no force in the objection that the mother, by reason of her sex, was incapacitated from being appointed to represent the minor Louis Edward Schreiber as...