Scovell v. Heirs of Levy
| Decision Date | 01 January 1901 |
| Docket Number | 13,995 |
| Citation | 106 La. 118,30 So. 322 |
| Court | Louisiana Supreme Court |
| Parties | MRS. MARY LEE SCOVELL ET AL. v. HEIRS OF LEVY ET AL |
Rehearing refused.
APPEAL from the First Judicial District, Parish of Caddo -- Wells, J., ad hoc.
Thomas Fletcher Bell, for Plaintiffs, Appellants.
Alexander & Wilkinson and Holbert & Barret, for Defendants, Appellees.
Defendants, owners of a mortgage by inheritance from their late father S. Levy, Jr., sought to foreclose it in accordance with its terms. The act of mortgage is dated July 25th, 1893, and was executed by S. J. Zeigler in favor of S. Levy, Jr. Mrs. S. E. Zeigler, the wife of the first marriage of S. J. Zeigler, died on April 8th, 1885. She was a creditor of the community existing between her and her husband for paraphernal funds which her husband had received and converted to his own use. Prior to his second marriage, S. J Zeigler qualified as tutor of his children, issue of his marriage with his late wife Mrs. S. E. Zeigler. An inventory was made of the property showing large assets. The property in controversy in this case was part of the assets carried on that inventory. It was bought from the Succession of S.W. Vance during the life of the former wife of S. J. Zeigler and it belonged to the community which had existed between S. J. Zeigler and his late wife, the mother of petitioners in injunction to which we will refer again later.
Plaintiffs, children of the first marriage, sued out an injunction to restrain defendants and the sheriff from selling the property in question, on the ground that at the date of the dissolution of the community between their father and mother, it belonged one-half to them, and the other to their father; that besides their father was indebted to their mother in a large amount which they inherited and which is secured by preference on all property of the community; that their rights could not be defeated or dislodged by any act of their father after the dissolution of the community; that defendants' mortgage can embrace only a residuum after the discharge of the community debts. On this point they invoke the decision in Newman vs. Cooper, 50 Ann. 1206, and Prior vs. Giddens, 50 Ann. 216, and aver that the residuum of the community can be ascertained only by a liquidation and settlement of the community inside of the insolvency proceedings in matter of Estate of S. J. Zeigler, a "declared insolvent."
Defendants sought to meet the questions propounded by plaintiffs by urging that about the eighteenth day of October, 1884, the father of plaintiffs, S. J. Zeigler, during the community with the mother of plaintiffs, Mrs. S. E. Zeigler, purchased the property as before mentioned from the Succession of S.W. Vance; that during the community, while their mother, Mrs. S. E. Zeigler, was living, their father, S. E. Zeigler, sold an undivided half interest to S. E., M. B. C., and S.W. Vance; that afterwards they, the Vances, and S. J. Zeigler, partitioned the property into equal parts, the Vances taking the north half and S. J. Zeigler, their father, the south half; that at the date of the partition, the mother of plaintiffs, Mrs. S. E. Ziegler, had departed this life, but that plaintiffs, who were then minors, were legally represented in the proceedings of partition and that, besides, since the act of partition, and since their emancipation or majority, they have ratified the act of partition, and that they are estopped from denying the validity of the act.
The further fact is pleaded by defendants that, after the partition, S. J. Zeigler sold his interest in this property to S.W. Vance; that he also shortly afterward sold the interest of plaintiffs, then minors, to the same purchaser, just named, in accordance with the recommendations of a family meeting legally convoked and held for that purpose and duly homologated, which sale divested all interest of the minors, now majors, and plaintiffs here; that this purchaser, Vance, in 1891, mortgaged the property to Norman F. Thompson, and, subsequently, he executed a second mortgage of which their father, S. Levy, Jr., became the owner; that their father foreclosed his mortgage and bought the property at sheriff's sale; that, thereafter, their father, Levy, Sr., continued to own the property until 1893, and in that year Levy, Sr., sold it to S. J. Zeigler, reserving, to secure the price, a mortgage and vendor's privilege, and it is this price they are now seeking to recover, as heirs of their father, S. Levy, Sr.
They aver that plaintiffs have no mortgage or any other claim on the property, and that they (defendants) are entitled to continue in foreclosing their own mortgage. This was the view of the District Court. From the judgment rejecting plaintiffs' demand and ordering the sheriff to proceed with the sale of the property, plaintiffs prosecute this appeal.
We do not infer that the learned counsel for plaintiffs objects to the foreclosure proceedings on the ground that Act 15 of 1894 has no application. That act specially provides that the holder of special mortgages, as in this case containing the pact de non alienando, shall not lose the right to executory process upon the property of insolvents and from this it is obvious that the act of surrender constituted no bar to direct foreclosure.
This, we understand, plaintiffs do not controvert, but urge that the fact that the mortgage rests upon the property of a dissolved community owing community debts, unsettled, renders it necessary to settle the community and establish the residuum before foreclosure.
If the property be community property and subject to community debts, a disposition or attempted disposition of it to the prejudice of the creditors may be enjoined and restrained but if it be not property subject to the rights of creditors, there is no reason to arrest foreclosure proceedings. It remains for us to determine whether the property involved in this suit was community property and, as such, is...
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