St. Charles Street Railroad Company v. Fairex
| Decision Date | 01 May 1894 |
| Docket Number | 11,366 |
| Citation | 15 So. 421,46 La.Ann. 1022 |
| Court | Louisiana Supreme Court |
| Parties | ST. CHARLES STREET RAILROAD COMPANY v. O. A. FAIREX |
Rehearing refused.
APPEAL from the Civil District Court, Parish of Orleans. King J.
H. H Hall Attorney, for Plaintiff and Appellee.
Albert Voorhies Attorney, for Defendant and Appellant.
Plaintiff instituted this hypothecary action to enforce the payment of a judicial mortgage he claims on one undivided third of certain property in the possession of the defendant.
Plaintiff's judgments, amounting to three thousand dollars, were obtained in 1883, and duly recorded in May of that year.
In 1881 Mrs. J. B. Schiller, against whom these judgments were obtained, made a partition and partial settlement with her children, to whom she was indebted as tutrix; the act of partition shows the acquisition of the property on which plaintiff claims a judicial mortgage by Mary A. Schiller, wife of O. A. Fairex.
In 1881, after the partition and partial settlement, Mrs. O. A. Fairex brought suit against her mother for an account, and in default of an account for thirty thousand dollars and interest.
Judgment was pronounced in her favor for that amount, being, the judgment recites, proportion of rents and revenues of the community property held in common by defendant with her husband, John B. Schiller, and due to the plaintiff.
In August, 1884, Mrs. Mary E. Schiller bequeathed the undivided two-thirds of the property to O. A. Fairex, the disposable portion; and her mother, Mrs. J. B. Schiller, inherited the remaining one-third as forced heir.
The will included two-thirds of the judgment obtained by the testatrix against her mother in 1881.
The property, including the judgment, were inventoried in the succession of the testatrix.
In 1887 Mrs. J. B. Schiller brought suit to annul the will of her daughter, Mrs. O. A. Fairex, and one of the allegations was that the judgment obtained by her daughter against her was not real, though it existed in fact.
In 1888 Mrs. J. B. Schiller consented to a judgment maintaining her daughter's will, and transferred to O. A. Fairex her undivided one-third interest as forced heir in the property, on which plaintiff claims a judicial mortgage.
Fairex, the transferee, paid Mrs. J. B. Schiller and her two daughters, Mrs. Henley and Mrs. Rollings, the sum of thirty-five hundred dollars.
All three are parties to the act "to compound, compromise and adjust their differences upon the terms and in the manner" declared in the act.
O. A. Fairex, as instituted heir of his wife, Mary E. Schiller, in addition cancelled and annulled the judgment of thirty thousand dollars obtained by his wife against her mother, Mrs. J. B. Schiller.
In the deed it is declared that the judgment is canceled by O. A. Fairex "in consideration of said above compromise."
Upon these facts judgment was rendered in favor of the plaintiff, condemning him to deliver the property or pay the amount.
From the judgment the third possessor prosecutes this appeal.
Two questions present themselves:
1. Does plaintiff's judgment affect the property of the defendant or secure a judicial mortgage?
2. Does it precede all claims in rank, and can the property be held subject to plaintiff's judicial mortgage without regard to any pre-existing indebtedness of Mrs. J. B. Schiller to the defendant which entered into the act of compromise of 1888 between her and Fairex?
THE JUDICIAL MORTGAGE.
In answering the first question our attention is arrested by the leading case of Voorhies vs. DeBlanc, 12 An. 864, cited by defendant's counsel, in which it was decided that an entire succession, disregarding the elements which enter into its composition, can not be mortgaged.
It is argued in behalf of the defendant that the debtor to plaintiff, Mrs. J. B. Schiller, did not acquire the specific property on which plaintiff claims a mortgage. That the mortgage did not attach for the reason that no settlement was made and no partition. That she could not have dominium over the property pending the administration. That the heirs inherited the succession as an entirety to be partitioned.
Such being defendant's appreciation of the facts, we are referred by his counsel to several decisions in line with the decision before mentioned as applying.
It would be going beyond what is called for by the facts in this case, to express an opinion regarding the principle announced in the Voorhies-DeBlanc decision.
In the case of Tureaux vs. Gex, Administrator, 21 An. 253, this Court said that the mortgage resulting from the recording of a judgment attaches to the heirs' portion of inherited immovable property, and that the enforcement of such mortgage is dependent upon the final settlement of the succession.
The Court adds: "Some doubt is created by the decision of the majority of the Court, but that a careful examination of the case will show that the point was not decided nor directly presented."
From Smith & McKenna vs. Charles, 27 An. 504, we quote:
"The recording of a judgment against an heir was held to affect all the mortgageable property thus owned by such heir."
We quote from these decisions to establish that it has never been held that the heir's portion is not affected by a mortgage against him. The conditions being that the enforcement of the mortgage is dependent upon a partition and final settlement of the succession.
In the case at bar the mortgage debtor was in possession of the undivided third of the lots inherited from her daughter, and there was in effect a partition, a final settlement of the act of compromise; but it did not remain as intended by the parties.
She transferred a third of the property to the co-proprietor, the instituted heir.
The contention of the purchaser, Fairex, at this time, is that it never passed out of the succession of the testator.
This position is not tenable, for he has acknowledged in a notarial act of transfer that Mrs. Schiller was in possession, and that she owned the property he acquired from her. The defendant having acknowledged that she had the right to sell, the legal sequence is obvious that the judicial mortgage attached.
The power to alienate included the power to mortgage.
The case is at least one remove from the DeBlanc-Voorhies case and other decisions in pari materia in which the issue related to property that had not passed from the succession to each heir in proprio nomine, but had remained unsettled as an entire succession. In the case under consideration the property had passed to the heir with the consent of the instituted heir and co-owner, who bought from the debtor, Mrs. J. B. Schiller.
The property is, beyond all question, in his possession as owner.
Such being the fact, he is without right to have it considered as in the possession of the succession of his late wife and never to have been in possession of her mother, as owner and heir, from whom he acquired.
As plaintiff's judicial mortgage attached, it devolves upon us to pass upon the second point involved, and suggested by the question relating to the indebtedness of Mrs. Schiller to her daughter, and its effect upon plaintiff's claim.
She was, it is contended by defendant, a debtor in a large amount, and in consequence not entitled to any portion of the estate.
Further that after the settlement of the amount due she would have remained indebted to the...
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