Glasscock v. Clark

The opinion of the Court was delivered by Bermudez, C. J. The plaintiffs, as heirs of their mother, sue to be decreed the owners of an undivided interest of certain real estate acquired during the community between her and her husband, and which the latter assumed of his own authority to sell, as a unit, after her death. The defendant filed a peremptory exception of no cause of action, which was sustained, and the suit was consequently dismissed. The District Judge assigned no reasons in support of his decree, other than that the law was “ in favor of sustaining said exception.” ' From this judgment the plaintiffs have appealed. Counsel for de [585] fendant have not favored us with their views on the merits of the defense they set up. We are left to infer, from the brief filed on behalf of the plaintiffs, that the judge of the lower court considered that the plaintiffs could have no right of action unless upon allegation of the liquidation and solvency of the community, as was announced in 25 An. 379, and 26 An. 639. The exception was not well founded, and the judgment sustaining it is erroneous. At the death of plaintiffs’ mother, the effects which composed the partnership of gains were divided into two equal portions between them, in their mother’s right, and their father in his own; R. C. C. 2406; Domat, v. 2, p. 32, No. 2470; and the rights so acquired vested so effectually in the plaintiffs, that the surviving partner could not legally alienate or encumber the property so as to affect them. 23 An. 638; 15 An. 113. The heirs being considered seized of the succession from the moment of its being opened, the right of possession which the deceased would have had, if the community had been dissolved by judgment, vested and continued in the person of the heirs, and each heir became an undivided proprietor of the effects of their mother’s succession, for the part or portion coming to him, which formed among them a community of property, as long as it remained undivided; R. C. C. 936, 1214; so much so, that a judicial mortgage can be acquired by registry, against an heir, affecting all the mortgageable property thus acquired and owned by him. 21 An. 253; 27 An. 504; 31 An. 748; Brennan vs. Bernard, 7 L. 222; see, also, 7 N. S. 94; 9 L. 284; 12 R. 266; 1 R. 149, 378; 10 R. 18; 3 An. 562. This doctrine was fully sustained in Bennett vs. Fuller, 29 An. 663, in which it was held, that, after the dissolution of the community, the husband, as its former head, has no power to sell, and can convey title to no greater part of the community property than his undivided half interest in it. See 31 An. 493. In Tugwell vs. Tugwell, decided by the present Court, 32 An. 849, we distinctly held, that the interest of the deceased spouse attaches at the moment of the dissolution of the community to the property-of the same, subject to the payment of the community debts, and that for the enforcement of the rights so acquired by the heirs it is not necessary that they should have been recognized or the community liquidated previously. By instituting the suit, in the right of their mother, the plaintiffs have accepted her succession and, consequently, the community which existed between her and their father. In the Tugwell ease, the principle announced in Gennan vs. Gay, 9 [586] L. 582, which is decisive of the question here presented, was distinctly affirmed, the Court making a copious extract from the opinion delivered at the time. See, also, 5 An. 581, 582; 6 An. 295; 16 An. 49; 18 An. 409; 19 An. 428; 7 R. 183; 5 R. 9; 2 L. 300; 12 R. 258. We also there held, that an heir can sue for his share in a succession without being constrained to make his co-heirs parties. 5L. 430; 4 O. S. 472; 3 L. 134; 32 An. 949. The rulings on the points now before us, as found in 25 An. 379, 26 An. 639, 27 An. 634, may well now be treated as no longer authority. We have otherwise considered the petition, and do not find that it is deficient. We think that it discloses a right of action as to the mat^ ters now before us. It is, therefore, adjudged and decreed that the judgment of the District Court be reversed; that the exception of the defendant be overruled, and that he do answer to the merits. It is further ordered that this case be remanded to the lower court for further proceedings according to law.