Landry v. Grace
| Decision Date | 28 January 1929 |
| Docket Number | 29195 |
| Court | Louisiana Supreme Court |
| Parties | LANDRY v. GRACE et al |
Rehearing Denied February 25, 1929
Appeal from Eighteenth Judicial District Court, Parish of Iberville William C. Carruth, Judge.
Suit by Dr. Adrian A. Landry, administrator, against Joseph A. Grace and others. Judgment for plaintiff, and defendants appeal.
Judgment annulled, and plaintiff's suit dismissed.
Paul G Borron and S. R. Hebert, both of Plaquemine, for appellants.
Charles T. Wortham, of Donaldsonville, for appellee.
The suit is to annul a sheriff's adjudication and deed of a certain plantation situated in the parish of Iberville, and to have the property decreed to belong to the succession of Edward J. Clifton. The facts are admitted, the controversy between the parties being confined solely to the law applicable to these facts.
The record shows that the plantation in question belonged to the marital community existing between Edward J. Clifton and his wife, Mrs. Eliza Blanchard Clifton; that some time prior to his death Clifton executed a mortgage on the property to secure a community debt; that subsequent to his death, and after his succession had been opened by his surviving widow, praying for an inventory, the mortgaged property was sold under proceedings via executiva to the defendant Joseph A. Grace; that in these proceedings the service of all process was made upon the surviving widow in conformity with Act No. 57 of 1926.
Plaintiff attacks the proceedings and sale on the ground that Act No. 57 of 1926 is unconstitutional so far as it provides for a proceeding via executiva contradictorily with a surviving widow in community; and, if constitutional, the statute cannot be given a retroactive effect. The court below maintained plaintiff's plea of unconstitutionality of the legislative act, and, accordingly, annulled the sheriff's adjudication and deed, reinstating the original mortgage in full force and effect. Defendants have appealed from the judgment.
The pertinent provisions of Act No. 57 of 1926 are contained in section 1, which reads in part as follows:
"That in all proceedings in which executory process 'via executiva' is resorted to to enforce the payment of a note or notes representing a debt of the community, and secured by mortgage importing a confession of judgment on community property, where either the husband or wife was dead at the time of the institution of such proceedings, it shall not be necessary to make the heirs of the deceased spouse parties to said proceedings, but it shall be lawful to make service of all process, citations, notices of demands, and all necessary services to be made in connection therewith upon the surviving spouse in community, and said proceedings shall be carried on against said surviving spouse alone."
The facts of the case at bar bring it squarely within the provisions of the statute, so that if it is not unconstitutional as set up by plaintiff, the suit must be dismissed.
The act of mortgage executed by the deceased imported a confession of judgment and authorized the mortgagee to resort to executory process if the debt should not be paid at its maturity. Executory proceedings operate in rem and not in personam. In the case of community property mortgaged to secure a community debt, the Legislature, by enacting Act 57 of 1926, has provided a simple and practical method of foreclosing the mortgage in the event of the death of the mortgagor by designating the representative of the deceased mortgagor upon whom the demand for payment, notice of seizure, and other process may be served. Obviously, the proper person to be so designated in the case of community property mortgaged to secure a community debt is the surviving partner in such community, whether the survivor be the husband or the wife.
In Richardson v. McDonald, 139 La. 651, 71 So. 934, a question analogous to the one at bar was presented for decision. That case involved Code Prac. art. 737, authorizing the appointment of an attorney to represent an absent mortgagor and to have the foreclosure proceedings in rem prosecuted contradictorily with him. The constitutionality of the codal article was assailed on the same ground set up by the plaintiff herein against the constitutionality of the legislative act of 1926. In the body of the opinion, at pages 656, 657, of 139 La. (71 So. 935), the court said:
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