Gay v. Hebert

• Decision Date: 07 March 1892
• Docket Number: 10,995
• Court: Louisiana Supreme Court
• Parties: MRS. LAVINIA GAY v. AMEDEE N. HEBERT. THOMAS B. MARY, UNDER TUTOR, INTERVENOR AND THIRD OPPONENT

10 So. 775

44 La.Ann. 301

MRS. LAVINIA GAY v. AMEDEE N. HEBERT.

THOMAS B. MARY, UNDER TUTOR, INTERVENOR AND THIRD OPPONENT

No. 10,995

Supreme Court of Louisiana

March 7, 1892

APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

W. B Sommerville, for Plaintiff and Appellee.

Alex. Hebert, for the Under Tutor and Appellant.

OPINION

BERMUDEZ C.J.

This litigation involves the rights of ownership of the minors represented by the third opponent, as their under tutor, to one undivided half of the property seized and adjudicated herein to the plaintiff, and also the mortgage rights which they assert on a like share of the same property belonging to their father and tutor who is the defendant, and which they claim are entitled to rank those contended for by the plaintiff and her succession, and which are said to exist no more.

It appears that on February 4, 1881, Hebert bought for $ 10,000 the undivided half of a plantation known as "Dunboyne," part ($ 4500) cash, and part ($ 5500) on time, for which he issued five notes of that date, payable two at two years, and the others at three, four and five years, each for $ 1100. The act of sale contained the stipulation of the pact de non alienando, and was duly recorded July 23, following, and subsequently seasonably reinscribed.

In October of the same year his wife, Emiline Gallaugher, died leaving several minor children as the issue of their marriage. Her succession was opened. An inventory was taken of the property comprising the community between them, which was appraised at upward of $ 14,000, an abstract of which was properly recorded on December 10, 1881, and afterward reinscribed in time. Hebert was appointed tutor and qualified as such on the same day.

None of the notes having been paid and all being then due, Mrs. Lavinia Gay brought suit, via executiva, on the 9th of March, 1891, with the averment that on the 17th of January, 1890, Hebert had obtained from her an extension to 1895, which, owing to his failure to comply with the obligations taken, authorized the suit, the same proving an acknowledgment of full indebtedness, and evidenced by an authentic act attached to the petition along with a copy of the deed of sale and the notes.

The fiat having issued, the undivided half purchased was seized and advertised. Previous to the day of sale, Mary, the under tutor of the minors, filed a third opposition, claiming, in their name, the ownership of one-half thereof free from plaintiff's averred vendor's privilege and mortgage, and a mortgage on the remaining half, ranking plaintiff's pretensions. No injunction was asked to stop the sale, but, on the prayer, a restraining order was made arresting the proceeds.

The undivided half seized was adjudicated to the plaintiff for $ 7500. She joined issue by a general denial and an averment of ownership under the sheriff's adjudication, praying for the dismissal of the opposition and for a recognition of her title.

There was judgment against the under tutor in favor of the succession of the plaintiff dissolving the restraining order touching the proceeds and reserving the rights of the minors against their father and tutor. Made a party, he failed to join issue, and no judgment was rendered as to him.

The under tutor appeals, and the administrator of the plaintiff's succession joins, asking that the judgment be amended by recognizing the title of the estate to the undivided half.

The main contention of the under tutor on behalf of the minors is that, at the death of their mother, they inherited the one undivided half of the property seized, which formed part of the community which existed between her and their father, subject to all valid community debts against it; that at the date of the institution of this suit, the five notes were prescribed, as to their mother's succession and themselves; that thereby the privilege and mortgage claimed by the plaintiff ceased to exist and to encumber the property to their prejudice, so that their share therein was cleared, and that the share of their father was likewise relieved, their legal and recorded mortgage against him, as their tutor, ascended and ranked the privilege and mortgage contended for by the plaintiff and her succession. The under tutor prays accordingly, asking, besides, a judgment against the tutor.

In answer, the administrator retorts that, at the date of the suit, not one of the notes was prescribed; that as to such which might have been so considered, the defendant had waived and interrupted prescription, and had formally acknowledged liability and indebtedness.

By reference to indorsements on the two notes which matured at two years, in 1883, it appears that, indeed, Hebert waived prescription and acknowledged indebtedness, and, by inspection of the act of extension, it also appears that he did the same thing, or the equivalent, as to all the five notes.

The suit having been instituted on March 9, 1891, and the fifth note fallen due on the 4th of February, 1886, it is apparent that they were all prescribed on their faces, on February 4-7, 1891 -- more than a month before the filing of the petition -- unless the acknowledgment relied on had a contrary effect.

The waiver and acknowledgments on the notes at two years were made more than five years after they had matured, the acknowledgments and promises in the act of January 17, 1890, which referred to all the five notes, were made after the note at three years was prescribed; but before those at four and five years had so become. Hence, they interrupted prescription as to these two only, but they revived the other three as ordinary notes, as the privilege and mortgage securing them died away, as to third persons, the moment they became prescribed. Accessorium sequitur principale. R. C. C. 3285.

The...