Killelea v. Barrett

The opinion of tlie Court was delivered by Ton», J. This is a petitory action, in which plaintiffs claim tlie ■ownership of an undivided half of certain city property, as heirs of their deceased mother, who was common in property with her husband, tlieir father. They claim, also, rents and revenues. The main defense of Barrett, in possession of tlie property, is that he acquired tlie same by a judicial sale made under a proceeding to enforce payment of a mortgage debt contracted by tlie. father of plaintiffs during the existence of tlie community between him and tlie mother of plaintiffs. There was judgment in favor of three of the plaintiffs, recognizing them as owners of three-fourths of one-half of the property described and referring tlie matter of rents and revenues to a notary for adjustment. Tlie claim of one of tlie plaintiffs (Mrs. Shaff) was rejected, .and she has not appealed. During the pendency of tlie proceedings in the lower court, Barrett died, and his legal representatives were made parties, who have appealed from the judgment. The appellees became the owners of tlie property, or of tlie interest therein as claimed, by inheritance from their mother, who died in 1862. [867] This portion, however, descended to them burdened with its share ■of the community debts. The entire property was sold to pay a mortgage debt contracted during the existence of the community, on the 22d of July, 1871. This sale took place after the death of plaintiffs’ father, Tilomas Killelea, and was by executory process directed against his succession, purporting to be represented by his legal heirs, who were all then minors, except Mrs. Schaff. The appellees having become the owners of their said interest in said property, and many years before the proceeding for its sale was instituted by Barrett, their right thereto could only be divested by a strict compliance with all the requirements of the law relating to judicial sales. It must be borne in mind that plaintiffs, at the time their said interest was acquired and at the time it purports to have been divested, were minors. And it is a rule to which there is no exception that the property of minors cannot be alienated unless after a rigid observance of the legal formalities prescribed therefor. The plaintiffs assail the title of the defendant—the sheriff’s sale, under which he claims on several grounds. Among others are these: 1st. That the proceeding was directed solely against their lather’s succession and not against their mother’s or them as her heirs. IVe do not think this was necessary. As before stated, the debt was a community debt, to enforce which the proceeding was instituted. The sole debtor was Killelea, the husband, and the community property was subject to the debt, and it was sufficient to make the debtor if alive, or his legal representatives if dead, parties to a proceeding to coerce its payment. This is settled by the later authorities which we follow. 26 Ann. 230. 2d. It is also charged that the debt was extinguished by prescription when the sale took place, and the mortgage securing it had thereby ceased to exist. The debt was contracted in 1859, but had been frequently acknowledged by Killelea, who besides, had paid the interest on the same regularly, and the mortgage had been seasonably reinscribed; and we think even were the debt prescribed, its prescription asserted for the first time after the sale could not affect the validity of the sale or its consequences. 23 Ann. 300; 20 Ann. 201. 3d. It is lastly urged that three of the plaintiffs—appellees herein— were not parties to the executory proceeding in any capacity whatever, and werehiot legally represented therein; that the tutor ad hoo, who [868] purports to have boon appointed to then), never qualified by taking'the oath prescribed by law. This presents a very serious question. In order to divest their title to the property, it was necessary that the proceeding should have been-conducted contradictorily with some one—either with the minors or with the succession of the debtor. The succession of Killelea was not represented by an administrator; hence the question is whether the minors were represented, or through them the succession. We find in the petition for the executory process it is stated that the three plaintiffs (appellees) were minors unprovided with a tutor, and it was asked that a tutor ad hoc be appointed to them. There is an order of the-judge making the appointment, but it nowhere appears in the record of that proceeding—which would seem to have been transcribed in its entirety in the transcript—that the appoincee ever took the oath proscribed by Art. 313 C. 0., that he ever accepted the appointment, or did a single act under it. Ilis qualification was essential to his authority to represent the minors. The dictum in the case of Sadler vs. Henderson, referred to, is not opposed to this. That referred to a curator ad hoc appointed under-Art. 116 C. P. Such appointee is not required to take an oath. But where a party applies for the appointment of a tutor art hoc, for the reason doubtless that the minor can only or best bo represented in the proceeding by a tutor, such tutor, like all other tutors, must take the-oath required. The counsel for the defendant invokes the legal presumption in favor of judicial sales as obviating the necessity of express or direct proof on this point. As stated before, where the property of a minor purports to be alienated under legal process, it devolves upon him who sets np such opposing- title to show affirmatively a full compliance with the requirements of the law. And such title is open to all objections of fact and law, without the same being specially pleaded. Inasmuch, however, as this and other grounds of nullity against this sale were not pleaded in the court, below and the defendant put on his guard thereby, but urged only in argument before tliis Court so far as the record discloses; and as it is possible that the oath of the tutor may have been taken and filed, but unintentionally or accidentally omitted from the transcript, we think the defendant should not be concluded by the omission, but the case he remanded to enable him to supply the proof required, if it exists. The presription of five and ten years pleaded cannot prevail. The first protects only against informalities in judicial sales and irregular [869] ities in the proceedings, connected therewith. Here the defect charged is of so radical a nature as to render the sale ap absolute nullity. As ■to that of ten years, it is not shown that ten years intervened between the majority of the plaintiff and the institution of this suit. The prescription pleaded against the right to recover the rents and revenues is equally unavailing. This was settled in suit of Walling’s Heirs vs. Manfield, 33 Ann. 1174. The plea of want of tender of the price is likewise without merit, for two reasons: one, that the defendant as the mortgage creditor provoking the sale, was himself the purchaser, and retained in his own hands the entire price. 24 Ann. 473; 3 Ann. 343. The other, that where the purchaser is in bad faith—as he would be in case the sale was an absolute nullity, and such nullity is here urged—no previous tender is necessary. Self vs. Taylor, 33 Ann. 769; Wood vs. Nichols, Ib. 744, 746; 24 Ann. 253; 31 Ann. 371. It is, therefore, ordered, adjudged and decreed, that the’judgment, of the lower court be annulled, avoided and reversed, and that the case be remanded to the lower court to be proceeded with according to law, the appellees to pay the costs of appeal ; and those of the lower -court to abide the final issue of the case.