Commagere v. Gally

Mathews, J., delivered the opinion of the court. This suit is brought by the plaintiff, as heir to his deceased mother, to recover certain real estate, and the annual fruits and profits thereof for many years in arrear; which estate he alleges, was community property belonging to his father and mother at the time of the death of the latter, and was administered and sold by the former as his natural tutor, without pursuing the formalities required by law, and who died without rendering any account of his administration. The petition is prolix and argumentative in so much, as to render it somewhat difficult, to ascertain clearly the objects of the claimant; but these are prety evident viz: to have the sale made by the plaintiff’s father declared null, to recover the property sold, and the fruits and profits, during the time it has been in the possession of the different vendees. To this action, the prescription of four years is pleaded, as provided in the article 356 of the La. Code, which corresponds with the article 77, found in the Old Code,p. 72. This plea was supported by the court below. The plaintiff appealed. These articles of our code, are similar to the article 475 of the Code Napoleon, except that the prescription established by the French Code, is ten years. A prescription of this nature, according to the jurisprudence of France, is perhaps only applicable to accounts rendered by tutors. It [163] relates to acts of a tutor, such as he may do in pursuance of his official power or authority, and such as would be ratified when legally done. See Pailliets Note, on the article cited from the Code Francois. The decisions of this court, in relation to the prescription of four years, against the pursuit of minors, after having arrived at the age of majority, touching the acts of their tutors, have established prxn0 A ciples, in accordance with those which seem to prevail A ' A under the provisions of the French Code. The acts spoken of, are acts of tutorship and the sale of property made, as belonging to the seller, can never be considered as an act of this kind. Whether the prescriptions of ten, twenty and thirty years might have been pleaded, and would have preJ J 0 r r vailed, cannot be inquired into; for they have not been reguA / «/ o larly pleaded either in the appellate court, or that of the first instance. No other prescription except that of four years, which relates to the actions of minors against their tutors, seems to be relied on by the defendants, which we are of opinion is not applicable to a case like the present. See Martin’s Rep., vol. 8, p. 619. 10 do.,p. 287 and 1 N. S., p. 334. The prescription of four years, relating to ac-lions of minors asainst. tIiejr *«- tors, is only apJSeítoIcts^f eñ may áo'“¡ípursudSjmwci-'or0^ aswoíí/be r“¡£ fled when legally done. The sale of property made as belonging to the actof this llindBelieving, as we do, that the court below erred, in sustaining the exception of prescription, as pleaded by the defendants. It is ordered, adjudged and decreed, that the judgment of the Parish Court, be avoided, reversed and annulled; and it is further ordered, adjudged and decreed, that the cause be sent back to said court, to be proceded in de novo, according to law. The appellees to pay uosts of this appeal.