Pipkin v. Thompson

Martin, J., delivered the opinion of the court. This is a petitory action in which the plaintiff had judgment against the defendant, and he against his warrantors. He appealed and cited the plaintiff alone. The warrantors have followed the defendant to this court, and pray for the reversal of the judgment. The record shows that the plaintiff’s father left, at his death, a tract of land, four arpents in front, which he had acquired during marriage with his surviving wife. The defendant claimed title under a sale from the widow, to whom it was adjudicated at the probate sale of the succession of the deceased; so that the question turns on the legality or validity of this sale. It was provoked by her petition to the judge of probates, stating the necessity of a partition and liquidation of the succession, and concluding with a prayer that a family meeting be convoked, to fix the terms and conditions of the sale of the property. The meeting recommended the sale and fixed the terms. It appears to us that the verdict and judgment in this case are correct. The sale was evidently made for a partition, for it is not shown that it was required for the payment of the debts of the succession. None of the formalities required in an action of partition by licitation were complied with. There was no inventory and appraisement made within the year. Louisiana Code, 1248. It, was neither alleged or shown that the property was indivisible by its nature, or could not be conveniently divided. The defendant did not, therefore, acquire that portion of the premises which descended to the plaintiff at the death of her father, to wit: one arpent. The widow and the plaintiff’s brother were entitled to the remaining three arpents. The defendant has relied on the plea of prescription, but the plaintiff has shown that she was not of age at the inception of the suit. It is, therefore, ordered, adjudged ánd decreed, that the judgment of the District Court be affirmed, with costs.