Bear v. Dendinger

PROVOSTY, J. In this suit an injunction has been obtained against a writ of seizure and sale in foreclosure of a mortgage. The two Goodbee brothers, Ernest and Alfred, who gave the mortgage, were owners of some 800 acres of timbered land in the parish of St. Tammany, and of two town lots with buildings and improvements thereon in the town of Covington, in same parish, and of a “railroad, engine, and roiling stock” in the same parish. They owned the railroad and some of the lands jointly, and were partners in the business of hauling logs from their said lands and other lands with said railroad for the sawmill of Theodore Dendinger, the mortgagee in said mortgage and the defendant in injunction. This business of the two brothers with Dendinger had been going on for some 12 years, on open account kept in the store of said Dendinger. This account generally showed a debit balance against the brothers. In May, 1905, they executed their joint note for $10,000, and secured it by mortgage on all their said above-mentioned property, and delivered it to Dendinger for a balance then due. The plan and expectation of the parties was that the profits of the business would eventually pay this note. Some three months after the execution of this mortgage Alfred Goodbee died, survived by a widow, and leaving the minor children whose tutor is the plaintiff in injunction. The surviving brother told the widow that he would go on with the business, and try to pay the debt, and, with the consent of the widow, he did so, the same arrangement continuing for an open account to which were charged all amounts drawn either by or for the business or by or for the surviving brother or the widow and her children, the plaintiff minors. This went on until May, 1915, when the suit in foreclosure of the mortgage was filed. On, April 20, 1906, the widow qualified as the natural tutrix of her children. The interest of the decedent in the property covered by the mortgage was inventoried, but was left under the arrangement hereinabove mentioned, whereas his property not covered by the mortgage was sold. In February, 1915, the widow forfeited her tutorship by remarrying; and the present injunction suit has been brought by a tutor ad hoc. The mortgage property is not shown to have been community property; hence the surviving widow is not shown to have had the usufruct of the share of her children in it. What appears in the brief of counsel for defendant in injunction based upon the supposition of that proof having been made does not seem, therefore, to have any application to the case. In behalf of the minors the prescription of [929] five years is pleaded; and the sole question in the case is whether the course of this prescription was interrupted by the following payments, credited on the back of the note: Payments of interest on May 15, 1906; May 15, 1907, and March 1, 1909, and partial payment of $453.06 on December 31,1909. These payments were thus made by simply crediting the amounts on the note and charging them to the open accounts. In none of these payments the mother of the minors, their tutrix, participated otherwise than as may be gathered from the foregoing; that is to say, from her knowledge that the railroad and timber business which the partnership dissolved by the death of Alfred Goodbee had been carrying on had'been continued as well as the said open account. Statements of the account were periodically furnished to the surviving brother and partner. On two occasions they showed a large credit balance. These large credit balances were not drawn out or attributed to the note, but were kept on the open account, as being needed for carrying on the business. The effect and operation of this business was that logs were being constantly taken from the lands belonging to the estate of the decedent and delivered to Dendinger, and that the railroad of like ownership, was being used for that purpose, and that the price of these logs was being credited to the open account, which open account was in turn charged with the accruing interest’ on the note. And this was done by common consent, with the view and expectation of the note being thereby eventually paid. Under these circumstances we think the payments made on the note must be considered to have been made by the minors, or for their account, as well, or as much as, by the surviving partner and brother for his account; and therefore to have had the effect of interrupting the course of the prescription. Prescription is interrupted by an acknowledgment of the debt, and such acknowledgment may be implied, and is implied, from partial payments. Succession of Darton, 113 La. 875, 37 South. 861; Wilson v. Bannen, 1 Rob. 556; Montgomery v. Levistones, 8 Rob. 145; Begue v. Mrs. St. Marc, 47 La. Ann. 1151, 17 South. 700; Succession of Mansion, 34 La. Ann. 1246. While a tutrix has not authority to -take a debt out of prescription after prescription has accrued, she has full authority to make partial payments either directly by means of cash or by making arrangements equivalent thereto, or resulting in the payments being made. The judgment appealed from is therefore set aside. The injunction herein is dissolved, and the suit of plaintiff is dismissed at his cost in both courts, with right reserved to the defendant in injunction to recover in a separate suit whatever damages may have been caused him by the said injunction. SOMMERYILLE, J., concurs.