Guillory v. Latour

• Decision Date: 18 October 1915
• Docket Number: 20938
• Citation: 138 La. 142,70 So. 66
• Court: Louisiana Supreme Court
• Parties: GUILLORY v. LATOUR

70 So. 66

138 La. 142

GUILLORY v. LATOUR

No. 20938

Supreme Court of Louisiana

October 18, 1915

Rehearing Denied November 15, 1915

SYLLABUS

(Syllabus by the Court.)

It is settled jurisprudence that, notwithstanding the death of one of the partners, the community of acquets and gains between husband and wife continues, by a fiction of law, to exist for the purposes of its liquidation; that the heirs of the deceased wife inherit her interest subject to that liquidation and the payment of the community debts; that such liquidation cannot be effected in the wife's succession; and that the administrator of that succession has no power to provoke the sale of community property for the payment of such debts.

No administration should be ordered in a succession which owes no debts and the heirs of which have accepted unconditionally.

An administrator of a succession has no right to provoke a sale of property of which, though inventoried as the property of the succession, a third person holds possession as owner under an apparently valid title.

An injunction should not issue to stay an execution, in its entirety, upon an allegation that the seizure is for an amount in excess of that authorized by the judgment, but should be limited to the excess.

An injunction will not lie to stay execution of a judgment for the price of real estate, on the ground that plaintiff has been evicted from part of the property, when it is shown that, in the suit in which the judgment was rendered, the defendant and vendee was allowed a reduction in the price and damages as compensation for such eviction.

Where a vendee of property collaborates with the administrator of the succession of a deceased wife in the preparation of a statement of alleged debts of the community in which she was a partner, and the statement is used as the basis for an order of sale, and sale of the property of such community, and its adjudication to such vendee, the proceeding is brutum fulmen, and affords no ground for enjoining the execution of a judgment against the vendee for the price of the property, and the obtention of the injunction is merely trifling with the administration of justice.

John W. Lewis, of Opelousas, for appellant.

Dudley L. Guilbeau, of Opelousas, for appellee.

Statement of the Case.

OPINION

MONROE, C. J.

Mrs. Cora Roy, second wife of Emile Latour, Sr., died in January, 1904, leaving five children, issue of her marriage; and in September, 1905, pursuant to a scheme to which plaintiff herein, defendant, and the surviving husband of the decedent appear to have been parties, and by means of a consent proceeding in, and judgment of, court, the community in which the decedent had been a partner was illegally devested of certain real estate, and the title thereto was placed in the name of defendant, and then in the name of the plaintiff's wife, and then in the name of a brother-in-law, after which there was a sale of the property for $ 5,000 to plaintiff's wife and partner in community.

Defendant then became dissatisfied with the arrangement, and brought suit to recover the property, or the price stated in the last instrument of conveyance, and this court gave judgment therein in favor of plaintiff (defendant in the present suit) and against the defendant (plaintiff in the present suit) for $ 5,000, with interest, costs, and attorney's fees, as the price for which the matrimonial community, of which said defendant was a member, had purchased the property, but remanded the case for the ascertainment and adjustment of certain claims which he had set up. Latour v. Guillory, 130 La. 570, 58 So. 341. The matter was then again litigated, and again brought to this court, and it was held that defendant (plaintiff herein) was entitled to set off against the judgment for $ 5,000, with interest, etc., certain specified amounts, with interest, and certain costs, which were to be thereafter ascertained. Latour v. Guillory, 134 La. 341, 64 So. 130. In the meanwhile, four of the (five) children and heirs of Mrs. Cora (Roy) Latour had brought suit for their respective interests, inherited from the deceased mother, in the property in question (or each for an undivided one-tenth of an undivided one-half), and on the same day (January 5, 1914) that the judgment last above mentioned was rendered this court handed down another opinion (affirming a judgment of the district court) in which it is said:

'The case was tried, and there was judgment in favor of each of the plaintiffs for an undivided one-tenth of the undivided half interest in the three tracts of land acquired by O. E. Guillory from Emile A. Latour, and there was judgment in favor of O. E. Guillory and against the plaintiff for $ 4,625, for value of improvements, etc. There was also judgment in favor of O. E. Guillory against Emile A. Latour in the sum of $ 1,256.31, damages, and the further sum of $ 2,500, with 8 per cent. interest from April 26, 1906' (being one-half of the purchase price for which Guillory had been condemned).

Referring to the 'proceeding' which we have mentioned, whereby the title to the property in question was acquired by defendant herein, the court said:

'The revendication was based on a prescribed note for $ 400; and the proceeding and judgment worked a fraud on the rights of the plaintiffs.'

And, again referring to the judgment of the district court, it was said:

'We do not think that the plaintiffs, appellees, have any good reason to complain of the judgment, which in effect sets aside the judgment of revendication as far as they are concerned. * * * The judgment rendered in favor of O. E. Guillory against E. A. Latour will operate pro tanto as a set-off against the judgment heretofore rendered by the Supreme Court, in favor of Latour.' Latour v. Latour, 134 La. 345, 347, 64 So. 134, 135.

On March 14th following defendant herein caused execution to issue under the judgment for $ 5,000, less the credits allowed by this court in the two cases first above mentioned, but failed to credit the $ 1,256.31 and $ 2,500 for which he was condemned by the judgment last above mentioned; and the defendant in the writ thereupon brought this suit, enjoining the seizure, on the grounds:

(1) That it calls for an amount in excess of that to which the plaintiff in the writ is entitled.

(2) That since the rendition of the judgment he has been evicted from four-tenths of the property for the price of which it was rendered.

(3) That since the rendition of said judgment and his said eviction an administrator has qualified in the succession of Mrs. Cora (Roy) Latour, who is seeking to subject the property seized to the payment in part of the debts due by the community formerly existing between the decedent and her husband, and that plaintiff is therefore disturbed in his possession and fears eviction therefrom; that he has notified defendant herein, as his vendor, of the demand made by said administrator, but the notice has been disregarded.

It was shown on the trial that, about the time of the issuance of the injunction, defendant's counsel instructed the sheriff to credit the writ of fieri facias, the execution of which was enjoined, with the two amounts of $ 1,256.31 and $ 2,500, with interest, and to notify the defendant in execution that he had done so; and it was also shown that the instructions were obeyed, and that defendant (plaintiff herein) claimed no further credits than those then allowed (added to those which had already been allowed). It was further shown, by the judgments of this court, that the amounts last above mentioned were awarded plaintiff as compensation for the eviction of which he here complains. It was shown, upon the other hand, that on January 15, 1914 (ten days after the two judgments of this court of January 5, 1914, were handed down), plaintiff transferred to Isom J. Guillory, his younger brother, who is employed by him as a clerk and stenographer, what is known in this litigation as the 'Marquez judgment,' and that on the same day Arthur Latour, one of the heirs of Mrs. Cora (Roy) Latour, opened his mother's succession, alleging that she had left an estate consisting of the undivided half of the property which has been the subject of this litigation, and praying that an inventory be taken and letters of administration issued, etc. An undivided half interest in said property was accordingly inventoried, the letters were issued, and the administrator then proceeded to file a statement of alleged debts of the community, with a petition in which he avers that the plaintiff herein 'claims to be the owner, and in possession, of one-half of the above described property, all of which belonged to, and was in the possession of, said community at the date of its dissolution,' that said property passed to said O. E. Guillory burdened with the community debts, and should be called back into the community unless the surviving husband and partner, or said 'third possessor,' should elect to discharge that burden, amounting to $ 4,331.19 1/2.

The first item on the statement, entered as 'Due to O. E Guillory,' is one of $ 88, with interest, for money advanced to pay the funeral expenses of Mrs. Latour. The second item, entered as 'Due to Isom J. Guillory,' is the 'Marquez judgment,' amounting, with interest, to $ 2,350.59. The third item, entered upon the statement as 'Due to heirs of Mrs. Cora Roy,' is one amounting, with interest, to $ 832, described as 'the amount tendered by them to Dr. E. A. Latour, on April 7, 1912, in payment of a community debt due by said estate to him for the purchase price of the community lands now under administration, and which amount tendered, upon being refused by him, was deposited in the registry of the court for his...