Webre v. Lorio

• Decision Date: 01 February 1890
• Docket Number: 10,522
• Citation: 42 La.Ann. 178,7 So. 460
• Court: Louisiana Supreme Court
• Parties: J. ALBERT WEBRE v. P. E. LORIO, SHERIFF, ET ALS

7 So. 460

42 La.Ann. 178

J. ALBERT WEBRE v. P. E. LORIO, SHERIFF, ET ALS

No. 10,522

Supreme Court of Louisiana

February 1, 1890

APPEAL from the Twentieth District Court, Parish of Lafourche Beattie, J.

L. P Caillouet, for Plaintiff and Appellant.

Knobloch & Moore, for the Defendants and Appellees.

OPINION

MCENERY, J.

F. Hollander & Co., judgment creditors of Mrs. D. R. LeBlanc the surviving widow of G. Rosemond LeBlanc, issued an execution on their judgment, seized and advertised for sale the undivided half of certain real estate as the property of the defendant in execution.

The sale was arrested by an injunction taken out by J. Albert Webre. In the petition for the injunction it is alleged that the plaintiff in injunction is a creditor of the succession of G. R. LeBlanc, who died in 1887, in the sum of $ 500, and that there are other creditors of the succession of LeBlanc and of the community which existed between him and the surviving widow, and that there are no assets to meet said claims except the property, the undivided half of which was under seizure and about to be sold by the personal creditors of Mrs. LeBlanc; that the said Mrs. LeBlanc is not the owner of the undivided half of said property by an absolute and indefeasible title, but has only a residuary interest therein, dependent on the settlement of the community; that all the said judgment creditor can seize and sell is the right, title and interest in and to the undivided half of said property; that, as the community was greatly involved the sale of the undivided half of the community property to pay the individual debts of the surviving spouse would greatly injure and depreciate the value of the property; that he had applied for the administration of the succession of LeBlanc, which was pending, awaiting legal delays, before his final appointment. The application to administer was made after the execution issued on the judgment and the seizure of the property. The injunction issued on the day of sale.

The defendants in injunction filed a motion to dissolve on the face of the papers, "for the reason that plaintiff is without any warrant of law so far as disclosed on the face of his petition, to invoke the equitable writ of injunction."

This motion was sustained by the District Judge, and from a judgment thereto dissolving the injunction, the plaintiff appealed.

The question presented is: Has the surviving wife such an ownership in the undivided and unliquidated community property that it can be seized and sold for her individual debts?

There is nothing in the jurisprudence of this State, in the Code, or the decisions of the courts, to prevent the surviving spouse from disposing of his or her part of the community property, subject to the debts and charges of the community.

Therefore, the individual creditor of either can subject it by seizure and sale to the payment of his debt, subject of course to the debts of the community.

After the death of the husband or wife the community is terminated, and the surviving spouse and the heirs of the deceased each become seized of one undivided half of the property, subject to the payment of the debts. The law fixes the title to the community property of the surviving spouse. It is an absolute and indefeasible title to one-half of the community property. This title can be divested by the creditor of the community in the manner pointed out by law, by its sale, to pay debts and to settle the community. The amount of the debts can not determine the extent of the title, make it more or less than one-half. The surviving spouse receives the property just as any other proprietor receives title burdened with debts. The title may be absolute and indefeasible, yet it may be divested by the mortgage creditor by seizure and sale of the property, resting on it when he acquired it, either by inheritance or purchase.

In the instant case, Mrs. LeBlanc is the owner of one-half of the community property acquired during her marriage with her deceased husband. Gayle vs. Davis, 4 M. 653; Hart vs. Toby, 1 R. 378; Dickson vs. Dickson, 36 An. 453.

As stated in Dickson vs. Dickson, referred to, "the widow and heirs take the estate absolutely, subject to the debts and charges against it, and all that is meant by residuary rights is that the property is thus encumbered."

In the same case this court announced these propositions as having been fully recognized by our jurisprudence, and said "in either case the widow and heirs can mortgage their interest in said property if it be real estate, and the creditor acquiring such mortgage is...