Dees v. Tildon

The judgment of the court was pronounced by King, J. This is an action to recover from Stephen Tildón, as principal, and Watkins, as surety, the price of a tract of land adjudicated to the former at a sale of the property of the succession of James Dees. The land has passed into the hands of Mrs. Tildón, subject to the mortgage retained in favor of Dees’s succession, and the plaintiff asks to enforce the judgment prayed for in this suit, upon the hypothecated property in her possession. The defences set up are, that the succession of Dees has been partitioned among his widow and heirs; that it has been accepted purely and simply by the heirs of full age and the widow; that the appointment of the latter as administratrix, after a partition, was irregular, and conferred upon her no authority to prosecute this suit, for more than her share of the community and the shares of the minors. It is further alleged that large payments have been made on account of the price; that there is a deficiency in the quantity of the land, for which the plaintiff, as administratrix, agreed to make a reduction; that the defendant,^ Tildón, has purchased the interests of two of the heirs in the succession, and has made payments on account of the shares of two others, which should be imputed to the price; and that he has paid a number of debts of the succession, which should also be compensated against the plaintiff’s demand. The court below rendered a judgment in favor of the plaintiff for the sum claimed, after deducting the payments made on account, and refused to allow, as offsets, the shares of the heirs purchased by Tildón, and the debts of the succession paid by him, from which the defendants have appealed. The defendants contend that when a sale of the property of Dees was made, the respective portions of the heirs and widow in community immediately became fixed and known, and that this was in effect a partition. The position is clearly untenable. The sale was only a preliminary step towards a partition. From its proceeds are to he deducted the debts and charges, and the residue is to be divided among the [414] heirs. That debts exist in the present instance is fully shown by the defendant Tildón himself, who offers in compensation several which he has paid. The fact that a sale of the property of the succession had been made, and that a part of the heirs were of full age and had accepted unconditionally, offered no objection to the appointment of an administrator. Several of the heirs were minors, for whom the succession could only be accepted with the benefit of inventory ; and in such cases the Code specially authorises the appointment of an administrator, upon whom the management of the succession devolves, until a partition be made among the heirs. Civ. Code, art. 1040. As administratrix, the plaintiff represented the entire succession; and had full authority to collect all its dues, for the purpose of paying the debts and partitioning the residue, if any, among the heirs, or their representatives. The court below refused to admit of proof of an agreement of the heirs of full age and the plaintiff, to make a deduction from the price of the land proportioned to an alleged deficiency in the quantity, to which the defendants excepted. The coui’t did not, in our opinion, err. The sale was per aversionem, and the administratrix was without authority to make such an agreement in her representative capacity, for a reduction of the price ; nor could the heirs of full age affect the interests of the minors by such a contract. Any agreement made by these parties, is an obligation personal to themselves. 8 Mart. N. S. 451. 1 Rob. 119. Tildón offered testimony to show, that he had purchased the interests of two of the heirs in the succession, and that he had made payments to two other heirs^ of the supposed amount of their inheritances, with a view of applying the sums thus paid towards the extinguishment of the plaintiff’s demand. The evidence was rejected, and we think correctly. The co-heir of age, who purchases at the sale of the hereditary effects, is not bound to pay the surplus of the purchase money, over the portion .coming to him, until his portion has been definitively fixed by a partition. C. C. art. 1265. This right is personal to the heir, and does not extend to the purchaser at a succession sale, who subsequently acquires the interest of one or more of the heirs. The amount which the defendant will be entitled to receive in his representative capacity is uncertain ; it can only be determined upon a final partition, after the payment of the debts, and cannot be offered in compensation against the demand of the plaintiff, the object of which is to collect the assets for legal distribution. C. C. 1066. On the final liquidation of the succession, the defendant will be entitled to receive the portions of the heirs whom he represents, and the sums which he has paid on account of the shares of others. Evidence offered by the defendant to show the amount of debts which he had paid for the succession, was also excluded. The judge did not, in our opinion^ err. Those debts can only be paid in a due course of administration, with the authorityonly of the judge, and constitute no offset against the plaintiff’s demands. C. C. art. 1056. The judgment of the court below is in solido, against Tildón sxiAWatkins. In this respect it is erroneous, and must be corrected. The obligation of these parties is not joint and several. It is therefore ordered, that the judgment of the court below be amended, so that, instead of a judgment in solido against the defendants S'. Tildón and Wat Jcins, there be judgment against said Tildón, as principal, and said Watkins, as surety, and in other respects that said judgment be affirmed ; the appellee paying the costs of this appeal, and the appellants those of the court below.