Bedell v. Calder

The opinion of the Court was delivered by Todd, J. This is an hypothecary action to enforce a legal mortgage claimed to have resulted from an indebtedness to the plaintiff by her natural tutrix, who is alleged to have owned the land described in the [806] petition, during tlie tutorship, and now sought by this suit to be subjected to said mortgage. Pleas of prescription of four and ten years were filed in the lower court against the demand,' and that of four years sustained and the suit dismissed, and from this judgment the present appeal is taken. Mrs. Célézie Hays, widow of Jotlian H. Bedell and mother of the plaintiff, was confirmed as her natural tutrix on the 30th of January, 1860. On the 12th of May, 1870, the tutrix filed an account of her tutorship in which she stated the balance due the plaintiff at that time to be $8190.58. This account, as between the plaintiff and her tutrix, oías to this particular indebtedness, .appears not to have been homologated during the minority of the plaintiff, who became of age in the year 1873. On the 14th of June, 1880, plaintiff presented a petition to the court .asking that 'this tutorship account, in so far as it concerned her, be •approved and homologated and the mortgage resulting from this acknowledged debt of the tutrix be recognized and made'executory, •and ap judgment was rendered in conformity to this prayer on the 28th •of April, 1881. To enforce the mortgage thus recognized the present suit against these defendants was instituted on the 19.th of September, 1882. The question to be decided is whether, under this state of facts, the claim of the plaintiff is barred by the prescription pleaded against it. Prescription did not run against the plaintiff during her minority. €. C., 3522; Sewell vs. McVay, 30 A., 673. After the expiration of four years from her majority no action would lie in her favor to compel the rendition of an account by her tutrix, or to change or alter in her favor any account of the tutrix rendered—or, in short, to establish any indebtedness on the part of the tutrix •“ respecting the acts of the tutorship ” not already legally acknowledged or fixed. This we take to be the true intent and meaning of Art. 362 of the Civil Code. We find, however, that in this instance the indebtedness of the tutrix to the plaintiff, her ward, at the time the latter attained her majority, was liquidated and established by the judicial admission of the tutrix made in her tutorship account as stated. The liability and the debt thus acknowledged stood uncontroverted up to the time plaintiff attained her majority. It was for her after that period to accept or reject it. It is evident that she tacitly accepted it by her silence [807] and failure to oppose it, and afterward expressly by her motion to have the account homologated. And notwithstanding her long delay in talcing this last step she was not debarred from doing so. At the attainment by plaintiff of her majority the tutorship account filed three years before might be properly regarded as a proceeding-pending in court between her and her tutrix, in which the latter as accountant occupied the position of plaintiff and she, the ward, as defendant cited to answer the account. She might at any time, by a simple appearance and answer, have procured the homologation of the account. That she appeared by formal petition to effect this object might appear irregular, but such irregularity did not in fact alter her true position or affect her rights. It could not be regarded as an “action” against her tutrix to fix or establish an indebtedness, for that had already been done by the tutrix’s own formal judicial acknowledgement, made in the most solemn form and in the manner-prescribed by law. It denoted only an express acceptance on plaintiff’s part oí what she had always accepted by her previous silence and inaction. The judgment homologating the account only declared the legal effect, with respect to the mortgage, that the law imparted to the debt. The proceeding to have the account of tutorship homologated and the judgment of homologation both took place before the expiration of the ten years from the plaintiff’s majority and were in time. This suit to enforce the mortgage based on the debt thus recognized was filed the next year. Our conclusion, under these circumstances, is that the prescription ■of four years was improperly sustained, and it is quite as clear that the prescription of ten years is equally inapplicable. It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the case be remanded to that, court to be proceeded with according to law, the costs of appeal to bo paid by the defendants.