Miguez v. Delcambre

• Decision Date: 03 January 1910
• Docket Number: 17,517
• Citation: 51 So. 108,125 La. 176
• Court: Louisiana Supreme Court
• Parties: MIGUEZ v. DELCAMBRE et al

51 So. 108

125 La. 176

MIGUEZ v. DELCAMBRE et al

No. 17,517

Supreme Court of Louisiana

January 3, 1910

Appeal from Nineteenth Judicial District Court, Parish of Iberia James Simon, Judge.

Action by Dominique Miguez, administrator of Adelaide Landry against Louis Delcambre and others. Judgment of dismissal and plaintiff appeals. Affirmed.

See also, 118 La. 1062, 43 So. 703.

Weeks & Weeks, for appellant.

Burke & Burke and Ventress J. Smith, for appellees.

OPINION

MONROE, J.

Statement of the Case.

Plaintiff brings this suit as the administrator of the succession of Adelaide Landry, deceased wife of Louis Delcambre, for the resolution for nonpayment of price of a sale made during the life of the decedent of a certain plantation, and he prays that other sales of, and transactions affecting, said plantation made and entered into after the death of the decedent be decreed null, or, in the alternative, that he have judgment against the original vendee for the price of the property, with interest, attorney's fees, etc. The facts out of which the litigation arises we find to be as follows, to wit:

Louis Delcambre and his wife were married under the regime of the community, and during the marriage acquired the plantation in question, which on January 3, 1883, Delcambre sold to their son-in-law, Frederick Hebert, for $ 6,500, represented by six notes (five for $ 1,000 each and one for $ 1,500), payable in from one to six years, respectively, with interest, and secured by mortgage and vendor's lien, with the usual stipulations as to attorney's fees, etc. Some time after (during the life of Mrs. Delcambre, but precisely at what date does not appear) Hebert bought machinery to be used for the manufacture of sugar on the plantation so purchased by him, and borrowed the money with which to pay for it from a gentleman to whom Delcambre obligated himself as surety for the debt, and to whom he delivered as collateral one or more (probably two) of the notes that he had received from Hebert. Hebert also, and for several years (still during the life of Mrs. Delcambre), obtained advances for planting purposes from Pierre Le Bron, a merchant in New Iberia, and his father-in-law, in that case as in the other, bound himself as surety for the debt, and from time to time, as the debt increased, gave Le Bron one of Hebert's mortgage notes as collateral therefor, the fact being that Hebert was uniformly unsuccessful in his business operations, that he was insolvent almost from the beginning, and (it may as well be stated here) that he did not at that time or eventually pay anything on the notes to which we have referred.

Mrs Delcambre died on December 20, 1891, leaving as her heirs (issue and descendants from her marriage with Louis Delcambre) her (major) sons, Desire and Laodice, her (married) daughters, Mesdames Dessan, Viator, and Hebert, and her grandchildren (children of her predeceased daughter Elina, or Evina, formerly the wife of Luzin Miguez), to wit, Azeme (wife of Oscar Broussard), Menora (wife of Jos. Rodriguez), Dominique (now the administrator, plaintiff herein), Orezile, Cecilia (wife of Theo. David), Honora, Honore, and Alfred. Of those grandchildren Alfred was born November 13, 1881, and Cecilia November 22, 1883, so that the latter could hardly have been married when her grandmother died. When the others were born is not shown, but it is likely that Honora and Honore, as well as Alfred and Cecilia, were minors at that time. The estate of the decedent appears to have consisted exclusively of her interest in the community, save a matter of $ 1,038.77, which she had inherited from her parents and had turned over to her husband; and, so far as we have been able to discover, she owed nothing, and her estate was charged with no debts, save a few items, aggregating $ 110, for funeral expenses, which were subsequently paid. On August 5, 1893, Louis Delcambre presented a petition to the district court, alleging the death of his wife, further alleging that an inventory should be made and an administrator appointed, and praying that his application for administration be advertised, and the inventory was ordered and made, the original, filed December 11, 1893, showing community property to the value of $ 17,516.90, and a supplemental inventory, made on April 17, 1894, showing, as belonging to the community, the mortgage notes and another note made by Hebert, a note made by Joseph Viator, and a note made by Laodice Delcambre, the whole appraised at $ 11,320. The applicant appears to have taken the oath, given bond, and received his letters, as administrator, in December, 1893, and he proceeded to administer the estate, and filed an account, which was homologated by judgment of date May 19, 1894, and by which he was recognized as surviving husband in community, entitled, in his own right, to an undivided half interest in the property of the community, and, as usufructuary, to the enjoyment of the other half interest. In the meanwhile he had made an arrangement with Le Bron with reference to the debt for which he was bound for account of Hebert, as a result of which Le Bron had advanced the money required to pay the amount due to the gentleman who had made the loan for the purchase of the machinery, and Delcambre had executed a notarial act in which he acknowledged that he owed Le Bron an aggregate of $ 4,788.74, represented by notes bearing interest at 8 per cent. on which he and Hebert were bound in solido; and declared that as security for said notes he delivered to Le Bron the mortgage notes which he had received from Hebert. How much of the debt thus acknowledged was incurred before and how much after the death of Mrs. Delcambre the evidence does not show, but it seems reasonably certain that nothing of consequence, save the running interest, was added thereto. On the other hand, nothing thereafter was paid, and, after waiting for several years, Le Bron became dissatisfied with the mortgage notes held by him as collateral, and which were by that time some 10 or 15 years past due, and threatened suit unless fresher securities were furnished. It was thereupon agreed, upon the advice of counsel, that Delcambre should foreclose the mortgage securing the notes thus held by Le Bron, that the property should be adjudicated to Hebert, and that the latter (the old mortgage being canceled) should give Le Bron new notes, secured by a new first mortgage, for the amount due him, and should give to Delcambre a second mortgage to secure the amount represented by the old notes, with accumulated interest. Delcambre accordingly obtained executory process, under which on September 24, 1898, the plantation was adjudicated to Hebert, who paid nothing for it, and the sheriff executed a deed conveying the property to him, and reciting that the price had been paid in cash. Thereafter, on September 27, 1898, Hebert executed an act giving a first mortgage on said property to secure three promissory notes, aggregating $ 7,591.31, payable to his own order and by him indorsed in blank, which, the act recites, he delivered to Le Bron in reimbursement of money which had been loaned by that gentleman. And on the same day he executed another act, giving a second mortgage on the property to secure three notes aggregating $ 16,223.32, which, the act recites, he delivered to Delcambre in reimbursement of money borrowed from him. On January 12, 1900, Hebert executed an act of sale of the plantation to Delcambre for $ 15,000 cash, though nothing was really paid, and about the same time he gave Delcambre a confession of judgment (which was never entered, because it was considered of no value) for $ 10,660.27 representing the difference between the price thus fixed and the total amount of his indebtedness. Delcambre then leased the plantation to his sons, Desire and Laodice, on condition that they would do something towards redeeming it from the run-down state into which it had fallen, would pay the taxes and the interest on the debt due to Le Bron. Four years later, Le Bron having died, his sister and heir, Miss Marie Le Bron, caused executory process to issue on the notes which had been held by him, and the plantation was on October 15, 1904, adjudicated to Desire and Laodice Delcambre for $ 11,050 cash, of which amount $ 915.33 was appropriated to the payment of costs and attorney's fees, $ 7,643.83, to the payment of the debt due Miss Le Bron, and the balance, of $ 2,490.84, was turned over to Louis Delcambre. In the meanwhile, probably in 1902, Dominique Miguez (now before the court as administrator) had instituted a suit alleging that there had never been any order of court appointing his grandfather administrator of his grandmother's succession, making various charges concerning the manner in which the estate had been handled, and praying that he be appointed administrator, which suit was dismissed in the district court on a plea of res judicata, based upon the judgment homologating the supposed administrator's account. The judgment of the district court was, however, reversed in this court, on the ground that the plaintiff, as one of the heirs, had received no notice of the filing of the account, and was not bound by the judgment relied on. Miguez v. Delcambre et al., 109 La. 1090, 34 So. 99. The matter, having been tried on its merits in the district court, came to this court again, and it was held that, there being no evidence of any order of court authorizing the issuance of letters of administration to the defendant, the letters were of no effect, and that the application of the plaintiff should be advertised. Miguez v. Delcambre, 113 La. 61, 36 So. 888. Upon the third appearance of the litigants, it appeared that certain oppositions to the...