Verrier v. Loris

• Decision Date: 23 March 1896
• Docket Number: 11,997
• Citation: 48 La.Ann. 717,19 So. 677
• Court: Louisiana Supreme Court
• Parties: THEODORE VERRIER v. P. E. LORIS, SHERIFF

19 So. 677

48 La.Ann. 717

THEODORE VERRIER v. P. E. LORIS, SHERIFF

No. 11,997

Supreme Court of Louisiana

March 23, 1896

Argued January 10, 1896

APPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Caillouet, J.

Beattie & Beattie, for Plaintiff, Appellant, cite: 12 An. 457; 26 An 232; 29 An. 524; 32 An. 792; 37 An. 867; 43 An. 236; 46 An 357, 1284.

Clay Knobloch & Son, for Louis Devillard, Defendant, Appellant.

OPINION

WATKINS J.

This is an opposition to a judicial sale of real estate coupled with an injunction predicated on the following grounds, viz.:

That the property in controversy, which consists of a fractional lot of ground with a brick building and other improvements thereon, situated in the town of Thibodaux, was purchased by plaintiff on the 13th of June, 1891, and that same has been advertised for sale at public auction for the purpose of paying debts, at the instance of one Louis Devillard pretending to be the administrator of the estate of his (petitioner's) deceased wife, Jeanne Claude Devillard.

That unless restrained and prohibited from so doing he will proceed to sell said property and convey a title thereto upon the adjudicatee at said sale to his great and irreparable injury.

That while petitioner believes that such sale and adjudication, when made, will be an absolute and utter nullity, in so far as it may pretend to convey a title to a purchaser, should there be one, he is unwilling to allow same to take place if he can avert or prevent it.

In addition to the foregoing, petitioner alleges that said sale proceedings were without notice to him, wrong and illegal in themselves done in bad faith, with malice and without probable cause, operate as a slander of his title, and have caused him great and irreparable damage and injury.

The prayer of the petition is that the sale be perpetually enjoined and for judgment personally and in solido against the sheriff and administrator in the following items of damages, viz.:

Attorneys' fees

$ 400

Slander of title

500

Injury to credit

200

$ 1,100

The answer of Louis Devillard is that he is the duly appointed qualified and acting administrator of the succession of Jeanne Claude Devillard, late wife of Theodore Verrier (plaintiff in injunction), and that the property in controversy belonged to the matrimonial community theretofore existing between the deceased and the plaintiff.

That said property was advertised for sale for the purpose of paying debts of the said community and succession in pursuance of an order of court which was granted for that purpose.

That the illegal, wrongful and malicious issuance of the writ of injunction has caused said succession damages to the extent of one hundred and fifty dollars, and one hundred and fifty dollars additional in the way of court costs and advertising sale and interest which accumulated upon the debts of the succession.

Wherefore, he prays for the dissolution of the injunction and judgment against the plaintiff and the surety upon his injunction bond in the sum of three hundred dollars and costs.

On the trial there was judgment perpetuating the injunction and restraining sale of the property of the community under the order of the court to pay debts; but that decree was conditioned upon the plaintiff, as surviving husband and usufructuary, paying all the debts of the community, and particularly the debt due to the separate estate of the wife "within a period of ninety days, otherwise the administrator shall have the right to renew his application for an order for a sale to pay debts and liquidate the community."

The judgment rejected the plaintiff's demand for damages in toto.

From that judgment the plaintiff prosecutes this appeal, resisting the reservation as specified herein; and in this court the defendant administrator answers the appeal and avers that the judgment appealed from is erroneous and should be reversed -- reiterating the charges contained in his answer in the lower court.

Having gone over the pleadings and judgment we find that there is presented for consideration and decision the solitary question of law: whether or not the administrator of the succession of the deceased wife can sell property of the legal community for the purpose of paying the debts of the community during the lifetime of the surviving husband? And in case that question is decided in the negative, whether or not the judge a quo had the legal right to make in his judgment the reservation he did.

Unquestionably the real estate in controversy belonged to the matrimonial community which existed between the plaintiff and his deceased wife, and that the community being dissolved by the death of the wife, the title vested in the surviving husband and the heirs of the wife, jointly, subject to the payment of community debts and charges.

Unquestionably, the one-half interest of the deceased in the community passed under the usufruct of the surviving husband at her death, and the inheritance of her heirs became subject thereto, and will so remain until it shall terminate.

Unquestionably, the wife while living, incurred no personal responsibility for the debts of the community, and, consequently, neither her succession nor heirs become responsible therefor after her death; notwithstanding the heirs will be entitled to any residuum there may remain after the settlement of the debts of the community at the termination of the surviving husband's usufruct.

The foregoing are fundamental and elementary propositions, in support of which citations of authority and the principles of the Code are deemed unnecessary.

And accepting same as correct, it is not readily perceived upon what ground the pretensions of the administrator are founded; for if the wife was not personally bound for the payment of community debts while living, no duty is cast upon the administrator of her estate in reference to their liquidation and payment in her succession.

It may be said that the wife's heirs have an interest in seeing community debts discharged, because they have an interest in ascertaining the residuum in order that the amount of the bond of the usufructuary may be fixed.

But, conceding this interest, the claim of the administrator's counsel is a non sequiter, for the reason that the heirs have a different and adequate remedy for ascertaining the net value of their half interest in the community by making proof, contradictorily with the survivor and usufructuary, of the value thereof and the amount of the debts, and thus fix a basis for his bond.

This was the course pursued in the succession of Mrs. Julia Abes, which figures in the suit of Abes vs. Levy, 48 An. 41, recently decided.

It is also undeniable that the husband is, during the existence of the community, personally and individually liable for community debts, and is chargeable with their settlement after the death of his wife, irrespective of his usufruct.

But we find, in the reasons of the judge a quo for the decision he rendered, the following statement, viz.:

"On May 29, 1894, in passing on the petition of plaintiff herein, to be put in possession as usufructuary of his wife's share in the property, I decided that the administrator (of the wife's succession) had the legal possession of such share, and the plaintiff could not take it as usufructuary without paying the debts of the community. That judgment was never appealed from, but acquiesced in by the parties; the plaintiff herein having since paid the greater portion of the debts, excluding the debt of the community to the separate estate of the deceased."

Though, he frankly admits, that since that decision was rendered this court has rendered an opinion announcing an opposite view, citing Hewes v. Baxter, 46 An. 1281, and that he deems it to be his duty to follow it.

Consequently he was of opinion that on account of this difference of opinion between this court and himself, and the fact that the plaintiff is now "in the enjoyment of the community property as usufructuary, upon paying the debts of the community; and considering the fact that the said husband had paid many of the debts under said judgment," he thought it would serve the ends of justice and equity to arrest the sale of the community property for the time being at least.

"As the debts of the community have not been all paid; and as it has been alleged that there are debts due by the separate estate of the wife, provision will be made in the decree for their payment out of the property, should the surviving husband fail to pay them. The community owes the separate estate of the wife, and the amount of this claim may be sufficient to pay the debts of the (wife's) separate estate. If insufficient, then the administration will have the right to force a liquidation of the community, in order to subject the wife's residue to the payment of the debts...