Shaffet v. Jackson

Land, J. This is a petitory action for a tract of land, in which plaintiffs claim title by inheritance from their mother, Mary Shaffet. [157] They admit a probate sale of the land in 1829, under which defendants claim title, but allege its nullity, substantially on the following- grounds : First — Because the plaintiffs were minors, and no parties tq the judgment, under which the land was sold, for the reason, that no tutor, nor under-tutor, nor special-tutor was ever appointed to represent them. Secondly — Because no inventory of the property had been made previous to the decree of sale. Thirdly — Because no family meeting was convoked to deliberate upon the terms of sale, and said sale was made without the advice of a family meeting. Fourthly — Because the land did not bring its appraised value at the probate sale. In 1829 John Shaffet instituted suit against his children, the issue of his marriage with Mary Shaffet, deceased, for a partition of the community property. At the time of the commencement of the suit for a partition the plaintiffs were minors. In pursuance of the prayer of the petition, a curator ad litem was appointed to represent them and their co-minor heirs. Experts were also appointed to determine whether the property could be divided in kind. They reported that a sale was necessary to effect a partition. On the 23d of February, 1829, a judgment was rendered, ordering the property to be sold, and on 6th of April, 1829, the sale was made and the land in dispute was adjudicated to James C. Jackson, at the price of five hundred and ten dollars, on one and two years credit, with ten per cent, interest after maturity. The defendants claim title under this sale, and plead the general issue and the prescription of five, ten and twenty years. As to the first ground of nullity alleged by plaintiffs, it does not appear that the father of the minors was ever confirmed by a judgment as their natural tutor, or that an under-tutor was ever appointed, but it does not follow from these facts that the minors could not be sued, and that a judgment rendered against them would be necessarily void. Article 116 of the Code of Practice provides, that if the minor against whom one intends to institute a suit has no tutor nor curator ad litis the plaintiff must demand that a curator ad hoc be named to defend the suit. In the suit for partition, the plaintiff prayed for and obtained the appointment of a curator ad litem for the minors to defend the action, and as against the purchaser in good faith at the judicial sale, the minors must be held at this distant period to have been properly represented in the suit, or at least to have ratified the proceeding by their long, silence and acquiescence. The second ground of nullity is untenable. The evidence shows that an inventory of the property was taken on the 4th of April, 1829, two days before the sale, which was sufficient. Molinari v. Fernandez, 2 An. 553. The third and fourth grounds are also untenable. Where minors are sued for a partition a family meeting is not necessary to authorize the suit or to fix the terms of sale. C. C. 1237. Nor is it necessary in such a suit, that the property should sell for its appraised value to make the sale valid. Jacobs v. Lewis, 8 L. 179. Sales directed by the court of probates are judicial sales, and the purchaser is protected by the decree ordering them, and if the court has jurisdiction the purchaser need not look beyond the decree itself. Lalannes’ Heirs v. Moreau, 13 L. 431. [158] It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts. Merrick, O. J., having been of counsel, recused himself.