Molinari v. Fernandez

The judgment of the court was pronounced by Rost, J. The defendant has appealed from a judgment condemning him to comply with the terms of an adjudication of real estate, and prays for its reversal, on the following grounds •: 1st. The property was sold under a decree rendered in an action of partition, which had been instituted by two of the heirs against their mother, as tutrix of the other heir. The plaintiffs were both minors, and, although married, it is alleged they could not sue for a partition of real estate, without the authorisation of the judge, given on the advice .of a family meeting. 2d. The mother of the defendant had lost the natural tutorship, by marrying without having been legally authorised to retain it, and another tutor had been .appointed. This tutor, and the second husband, both died ; a family meeting advised that the mother should be re-appointed tutrix,and she was so appointed, bu.t did not give bond. The appellant contends that she could pot act until that formality was complied with, and that she did not represent the minor in this suit. 3d. It is further alleged that the appraisement made before the safe, is not .such as tho law requires in cases of partition. Art, 368 of the Civil Code is an innovation on the former laws on the same subject. It athorises the husband under age to appear in court in all cases, and was .intended as an exception to the dispositions of arts. 1235, 1236, 376, 377 of the Civil Code, relied on by the defendant. Those dispositions apply now to cases of ordinary emancipation only. The amendment to ait. 999 of the Code of Practice, found in the 22d sec. of the act of 1828, amending various articles .of the Codes, gives .a similar power to tho wife under age, proyid.ed she be .authorised by her husband. Session Acts, p. 154. The rule that all persons except the father and mother shall be bound to give bond before they can a.ct as tutors, is general in jts terms, and there is no warrant of Jaw for making a distinction in cases like the present. Under art. 950 of the Code of Practice, the judge was .authorised to appoint the defendant tutrix, without the advice of a family meeting; the circumstance that she submitted her application to them, and was decreed worthy of the trust, cannot impose additional burthens upon her- The appraisement made before tho sale was in the usual mode in cases of seizures under execution, and satisfies the requisitions of tho law. When a li,citation takes pla.ee, there is no notary designated before whom the inventory .and appraisement can be made. Those formalitios only take place in partitions jn kind. There is no error in the judgment appealed from. Judgment affirmed.