Butler v. Her Creditors

Martin, J. delivered the opinion of the court. Zebriska, a mortgage creditor, opposed the homologation of the tableau—because Arient, a minor, the ward of the insolvent, was placed therein as a mortgage creditor. The application being overruled, the plaintiff appealed. His counsel urges that the insolvent was not legally appointed tutrix to the minor, and therefore, the sale she made of his property is void—the property remains his, and he has his recourse against the holder of it, and cannot be considered a creditor of the insolvent for the price. [625] Eastern Dis'ct April, 1827. The record shews the insolvent is grandmother of the minor, and, as such, was appointed his tutrix-she giving bond and security; but afterwards a meeting of the family of the minor, having recommended that the bond and security should be dispensed with, letters of tutorship were given her, without such a bond. The counsel for the appellant urges that the law dispenses parents alone, from the obligation of giving security—that the grandmother is not like the mother, a natural tutrix-but may be a legal tutrix; and as such, must give bond like all other legal tutors. We think the minor was correctly placed, as a mortgage creditor, on the tableau. He is a creditor of his grand-mother, who has sold his property, and who cannot refuse to pay the price, on the gound, that she acted illegally. This would be taking advantage of her own wrong. A minor, whose property has been illegally sold, has the option of demanding the price of him who received it, or the price thereof, from the vendee. We have already held that a tutor’s liability, is not avoided by his neglect to take the oath and give bond. Seghers for the appellant, Chapotin for the appellee. It is, therefore, ordered, adjudged, and decreed, that the judgment of the parish court be affirmed, with costs.