Downey v. Succession of Henderson

The opinion of the Court was delivered by McEnery, J. In the year 1879, during his lifetime, John Henderson employed Andrew Downey, a carpenter and builder, to construct a building and repair another on property owned in the City of New Orleans hy Henderson. Itemized accounts showing the amount of work done were recorded. In 1883, while Henderson was alive, Downey went into insolvency, and omitted to place on his schedule the amount now claimed from the succession of Henderson. Henderson died in 1885. Tlie widow John Henderson, natural tutrix of the several heirs of Henderson, filed a rule on Downey to have the inscription- of the lien for iahor and materials which he had recorded erased and canceled. In 1887, Downey filed a petition in his insolvency proceedings, in which he had been appointed syndic, alleging that he had inadvertently omitted to place the claim sued on in his schedule of assets. He brought suit against the succession of Henderson for the amount. [491] The demand is stale and was long held from presentation. Henderson was solvent, and no doubt could have easily paid the amount. Presenting the claim so long after his death casts snsx>icion upon it, and an unfavorable presumption is created by the delay. Wood vs. Eagan, 39 Ann. p. 684. No satisfactory explanation is made for omitting the claim from the schedule of the insolvent Downey. The plaintiff’s claim is shrouded in doubt and uncertainty, and the evidence in the record is not of that strong and.positive character to overcome the unfavorable presumption created by the long delay in its presentation and its omission from the schedule of the insolvent Downey, who was the syndic in his insolvent proceedings. It is unnecessary, therefore, to consider the question of prescription. Judgment affirmed.