Norres v. Hays

• Decision Date: 01 July 1892
• Docket Number: 1425
• Citation: 44 La.Ann. 907,11 So. 462
• Court: Louisiana Supreme Court
• Parties: TIBURCE NORRES, TUTOR, ET AL. v. DAVID HAYS, ADMINISTRATOR, ET AL

11 So. 462

44 La.Ann. 907

TIBURCE NORRES, TUTOR, ET AL. v. DAVID HAYS, ADMINISTRATOR, ET AL

No. 1425

Supreme Court of Louisiana

July 1, 1892

APPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

W. J Burke and T. D. Foster, for Plaintiffs and Appellees.

Todd &amp Todd and L. O. Hacker, for Defendants and Appellants.

OPINION

McENERY J.

The plaintiffs, alleging themselves to be the holders of and owners of a mortgage claim against property sold at tax sale, brought this suit to cancel the same.

An exception of no cause of action and prescription was filed The exception was maintained and the suit dismissed.

On appeal to this court the judgment was reversed, and the case remanded for the purpose of trying the question of prescription, and on the merits in case the exception of prescription should be overruled.

In the decree remanding the case to be tried on the merits, the exception of no cause of action was disposed of.

In the opinion of the court remanding the case the facts are fully stated. 42 An. 857.

After the case was remanded the plaintiffs filed an amended petition for rents and revenues, and the defendant, De Rouen for the price of the tax sale, the taxes subsequently paid and for the value of improvements. We will not pass upon the claim of plaintiffs for rents and revenues and the defendant's claim for improvements, as the defendant, De Rouen, became sole owner of the property independently of the tax sale, which issues may be more properly urged to enforce plaintiffs' rights in the hypothecary action against De Rouen as third possessor. 33 An. 291.

There was judgment for plaintiffs, and the defendant, De Rouen, has appealed. In January, 1869, John Hays sold the land in controversy to his nephews, David, William and Malachi Hays. The price was $ 15,000, in five instalments, evidenced by promissory notes, in solido, maturing in one, two, three, four, five years from date. The purchase price was secured by vendor's privilege and special mortgage. John Hays died in 1869. David Hays, one of the vendees, qualified as his administrator. His two brothers and co-debtors signed his bond as administrator. In 1875 David Hays brought suit on the notes, obtained judgment against himself and co-debtors, and caused execution to issue on the judgment. The sale was arrested by injunction, and nothing further was done in the execution of the judgment. Subsequently the administrator, David Hays, caused the erasure of the judgment from the records on the ground that it had become extinguished by prescription.

It is contended by plaintiffs that prescription on the notes was suspended during the time that David Hays was administrator, and that if the judgment be a valid one, prescription of the judgment was interrupted by several suits instituted by the plaintiffs. The defendant's contention is that the notes were merged in the judgment, which they allege was valid, and that there has been no interruption of prescription on the same.

Complaint is also made by defendants that David Hays has been improperly made a party to this suit, as he has no interest in it, having disposed of his interest in the land. But he has a direct interest in the question which has been raised as to the validity of the debt, and we are of the opinion that he has been properly made a party defendant.

It is no longer an open question that an administrator of a succession indebted to it can not sue on the claim in behalf of the succession, and that prescription is suspended during the continuance of his administration. McKnight vs. Calhoun & Sons, 36 An. 408; 32 An. 1037; 37 An. 341.

In the dissenting opinions in the case first referred to, this doctrine was recognized, but its application to a co-heir or co-debtor was denied.

In the instant case there is no attempt made to enforce the debt against a co-debtor who has interposed the plea of prescription, which has been suspended by the position in which one of the co-debtors, who alone could act, has placed himself. But it is a universal rule in our jurisprudence that the interruption of prescription by one solitary debtor interrupts it as to the others, because the debt is indivisible, and each is bound for the same thing. We see no reason why it should not apply to a suspension of prescription. In the instant case the reason is the more urgent, because the co-debtors were sureties on his official bond, and undeniably responsible for the mal-administration of their principal.

So far as the administrator, Hays, is concerned we do not understand that defendants contend, as to him, that the debt was prescribed. If not, then the debt really existed. No one could...