Barbarich v. Meyer

ST. PAUL, J. The only question involved herein is the validity of the- title to certain real estate, which appellant has been condemned t'o accept, as having been the adjudieatee thereof at a public sale to effect a partition between the parties named in the title hereto. He raises three objections. I. He complains that the parties have not been put in possession thereof as heirs of the one through whom they derive title, contradictorily with the inheritance tax collector, as required by Act's 109 of 1906 and 199 of 1920. [328] In Bonvillain v. Richaud, 153 La. 431, 96 South. 21, this court said: “Act No. 109 of 1906, ’ § 3, and section 1G, as amended by Act No. 199 of 1920, does not forbid heir tot take or retain possession or sue to recover title or possession until he- has paid inheritance tax or had inheritance judicially declared exempt, but only prohibits decree giving possession or alienation otherwise than subject to the taw.” (Italics ours.) The alienation -without these formalities is therefore valid, though subject' to the tax. But in the case before us it is shown that no tax was due. II. He further complains that the partition was not preceded by a formal inventory. But the property to be partitioned was examined by experts, who reported that it could not be divided in kind, and that the partition should be by licitation (i.,e., sale of the property and division of the'proeeéds), which was ordered by the court. It is well settled that property sold to effect a partition, may be sold for whatever it will bring at public sale, regardless of any appraisement. Therefore, when the Code requires that every partition shall be preceded by an . inventory and appraisement made within a year, it has reference to partitions in kind, for— “The first step to be taken in a partition * * * is to ascertain whether a division in kind is practical without a serious diminution of its value, or loss or inconvenience of one of the owners.” Paul v. Lamothe, 36 La. Ann. 319. And where it is manifest', or shown by the evidence, that the property is not divisible in kind, the taking of1 a formal inventory would be nothing more than a useless and costly formality, which the law does not require. Hansell v. Hansell, 44 La. Ann. 549, 10 South. 941; Paul v. Lamothe, 36 La. Ann. 319. And even where the partition in kind is feasible, and the court has ordered it made in that way, such partition, based upon the report and appraisement of experts, will be maintained, even though not preceded by “a formal inventory made by a notary.” Barnett v. Bernstein, Tutor, 22 La. Ann. 394. III. He complains, also, that the property was sold free of a usufruct in favor of the interdict upon the share of plaintiff, which usufruct was unlawfully commuted by the judgment for a cash sum to be taken from the share of the plaintiff. The judgment was erroneous, and if appealed from would have been reversed. Smith v. Nelson, 121 La. 170, 46 South. 200. But the fact is that the judgment was so rendered, and has not been appealed from; and it is now res judicata between all parties, including the intez-diet, who was properly represented under the provisions of Act 219 of 1918. “A final decree of a competent court in a partition suit concludes all parties on all questions of - title raised or that might have been raised in the partition proceedings.” Metropolitan Bank v. Times-Democrat Publishing Co., 121 La. 547, 46 South. 622. In the case last named, the decree of partition was attacked on the ground that it fixed erroneously the interests of some of the parties. But the court said: “The decree fixed the respective interests of the parties in the property to be partitioned, and, if it was erroneous in any respect, the remedy was by appeal” — citing Bayhi v. Bayhi, 35 La. Ann. 527. iy. Appellant' complains that he is charged with interest on the purchase price from date of adjudication. This was correct ; of course, by the same token he is entitled t'o rents and revenues, less taxes and expenses, from the same date. But no [329] amendment of the judgment is necessary to that end, as that is the necessary consequence of his being condemned for interest. Decree. The judgment appealed from is therefore affirmed.