Ferrier v. Ferrier

Slidell, C. J. The object of this action is to annul an adjudication made [432] to the plaintiff’s father, of certain property which belonged to the community existing between her father and her deceased mother, and of certain other property which was the separate estate of the mother; also to annul a decree by virtue of which a special was substituted for the general mortgage of the father’s property, as tutor of the plaintiff, who has now arrived at full age. The grounds for setting aside the adjudication presented in the petition are as follows: It is alleged that the meeting was not composed of the nearest relatives ; that no representative of the minor was cited to show cause why the decree of adjudication should not be rendered; that the members of the meeting were not notified throe days before it was hold; that the adjudication is null, because the notarial inventory of the 21st June, 1849, to which the decree of adjudication refers for the price, is null, for the reason that the appraisers were not appointed by the Judge. It is also alleged, that the separate property of the mother was not included in the decree of adjudication, nor could it lawfully be adjudicated; and that a certain house in New Orleans and plantation on False River, having thirteen árpente in front by forty in depth, called the Cheval plantation, were not included in the decree of adjudication; that if included, the decree was invalid, because the plantation and house in New Orleans was not mentioned in the inventory of the 21st of June, 1849. For so much of the property in question as is not included in the decree of adjudication, it confers no title, and it is therefore material to scrutinize the terms of the decree. It is in these words : The court, considering the application of Dr. Auguste Ferrier, executor of the last will and testament of Delphine Porche, and the deliberations of a family meeting held on the 24th of December, 1849, and being of opinion that the law and evidence are in favor' of said application. It is, therefore,- ordered, adjudged and decreed, that the deliberations of the said family meeting, be homologated, and that the shares of the minors, Léon, Bosa, and Emma Ferrier, on the property held in community between the said Auguste Ferrier and their mother, Delphine Porche, be adjudicated to the said Auguste Ferrier, at the price it was estimated at, in the public inventory made by Samuel Bush, notary public, on the-•-, and that the said Dr. Auguste Ferrier hold in usufruct, during his natural life, the estimate value of said property, according to Act of 1844. Done and signed in open court,- the 26th of March, I860, &c., &c. Under the terms of this decree, we think the adjudication must be limited, 1st, to the property held in community ; 2dly, to so much of the community property as was included and estimated in the inventory made by Samuel Bush. The date of this inventory is not given in the decree; but as there was only one made by him, there can be do difficulty as to the inventory referred to. It is impossible to go out of that inventory, because to constitute an adjudication, there must be a price fixed by the Judge, and no price is fixed in this decree, except the estimate in Bush’s inventory. "W e conclude, therefore, that the plaintiff is entitled to relief as to the property not included within the double limitation above mentioned; and it remains to be considered, whether the action can be maintained as to the property, which is included. After a careful consideration of the provisions of the Code of Practice, we are of opinion that the petition does not exhibit a case for an action of nullity, touching that portion of the property now under consideration, even supposing that the allegations of the petition are proved. Let it be observed, that there [433] is no charge of fraud or lesion, or other matter that would make it against good conscience to enforce the decree. The charge is the inobservance of formalities in the proceedings anterior to the decree. The Code of Practice prescribes, in the chapter on nullity of judgments, the causes for which this mdlity may be demanded in an action, and'in a subsequent chapter, it provides for a rescission of judgments. The Article C15, as it originally stood, opened a very wide door in favor of minors. It provided, that a judgment rendered against a minor may be rescinded, if such minor show either that his case has not been well defended, or that he has been aggrieved by such judgment. But this article was amended by the Statute of 1826, which declared that “it shall not be taken or construed to imply the nullity of a judgment where a minor has been regularly represented in a suit according to law.” Applying these provisions of the Oode of Practice, as now amended, to the case before us, we find in them no authority to annul this judgment, by reason of such informalities as occurred in this case, in which the minor was regularly represented. If remediable at all, they were remediable by appeal. The plaintiff relies on the case of Harty v. Harty, 8 New Series, 518, in which an adjudication to the surviving spouse was annulled, on the ground that the formality of taking an oath by the members of the family meeting did not appear to have been observed. But this case arose before the amendatory Act of 1826. ¥e have already noticed the absence of any charge of fraud or lesion, or other matter that would make it against good conscience to maintain the judgment, and which could bring the case within those equitable principles, which it has been said exist, and may be enforced by courts independently of the textual provisions of the Code. With regard to the special mortgage, we think it sufficient to say, that it is not alleged that the property so mortgaged is an inadequate security, nor that the mortgage is not valid against the mortgagor and third persons; and there is, therefore, no equitable reason to set it aside. The object of a family meeting, and a judicial order in such case, is to protect the minor. When the minor comes of ago, (which is the plaintiff’s case,) and has capacity to judge for himself whether the mortgage security is ample, he ought not to be heard in the prayer to burden the property of his parent with a general mortgage, when the existing mortgage is ample, simply because the preliminary steps in family meeting may have been irregular. Upon this ground alone then, independently of any other consideration, the judgment authorizing the substitution of the special mortgage, ought not to be disturbed. With regard to the proposition of the appellant, that the will of his wife vested in him, immediately at her death, a complete title to all the estate of of his wife, subject only to the condition that he should pay for it at a reasonable estimate, we are inclined to consider it untenable; but we think the question arising under her will, and the application of the Act of 1844, to the rights of these parties, will be more properly considered in the controversy now pending upon the settlement of Ferrier’s accounts, and which has not yet reached this court. A reservation will accordingly be made in our decree. It is therefore decreed, that the judgment of the District Court be reversed. It is further decreed, that the judgment of adjudication in the petition mentioned, rendered by the District Judge sitting for the parish of Point Cohpée, and signed on the 25th of March, 1850, conferred no title upon the said Au434 guste Ferrier, save only for the share of his deceased wife, Delphine Porche, in the community property described as such in the inventory made by Samuel Bush, notary public, under date of 21st June, 1849, whereof a copy is of record in this suit. It is further decreed, that there be judgment in favor of the defendant upon so much of the petition as demands the nullity of a judgment rendered by said District Judge, on the 8th day of June, 1850, authorizing the substitution by said Auguste Ferrier, of a special in lieu of a general mortgage, of which judgment a copy is of record in this cause. It is further decreed, that the costs of this suit in the court below, be paid by defendant, Auguste Ferrier, and that the costs of the appeal be paid by the plaintiff. It is further decreed, that the present judgment is made without prejudice as to any question arising, or rights acquired under the will of Delphine Porehe, or the Statute of 25th March, 1844-, entitled, an Act relative to community property.