Holmes v. Hemken

Morphy, J. The plaifitiff, as under-tutor of the minor Nancy Miriam Evans, prosecutes this appeal from a judgment dissolving an injunction he had obtained to prevent the sale of two negroes, seized at the suit of the defendant, Bernard Hemken, against James Killam, on the ground, that these slaves belonged to the minor. The material facts shown by the record are : That the mother and natural tutrix of Nancy Miriam Evans, who had intermarried with James Killam, was, on the 17th of November, 1835, appointed tutrix, and her husband co-tutor to the said minor, by a family meeting. That in April, 1841, the tutrix and her co-tutor rendered an account of their administration on the estate of James E. Evans, and of their tutorship up to that day ; whereupon, after hearing the objections of the under-tutor, who had filed an opposition thereto, the probate Judge of Ouachita rendered against them, in solido, judgment for the sum' of $14,357 83-J-, which judgment was recorded on the 22d of November, 1841. On the 21stofMay, of the following year, the under-tutor thought proper to sue out an execution against the tutrix, and co-tutor James Killam, to satisfy this judgment; and the negroes whose sale is enjoined were seized, with other property of the co-tutor. At the Sheriff’s sale under this execution, the under-tutor, who had obtained to that effect the authorization of a family meeting, bid for the minor $800, on each of the two negroes in question. After the adjudication, he directed the Sheriff to credit the amount of his bid on the execution of the minor, as holding the oldest mortgage on the slaves, and demanded of him a deed of sale in favor of the minor. This the Sheriff refused to do, unless the money was paid to him. Thereupon, that officer re-advertised the sale of these negroes, at the suit of the defendant Bernard Hemken, who had previously caused them to be seized under several judgments against Killam, recorded before that of the minor, to wit, on the 3d of May, 1841. This re-sale, the under-tutor, acting under the advice of a family meeting, enjoined. He prays, that the Sheriff may be decreed to make a conveyance of the slaves to the minor, as the rightful owner of [53] them under the adjudication ; and, in case the court should decide, that the title to said negroes is yet in Killam, that the Sheriff be ordered to apply the proceeds of the sale to the execution in his hands in favor of the minor, whose mortgage on Killam’s property is older than that of Hemken. The Judge below properly dissolved the injunction. The under-tutor, whose duty is to act for the minor when the latter’s interest is adverse to that of the tutor, is the proper person contradictorily with whom the accounts of the tutor must be settled. The judgment which is rendered thereupon, fixes the amount due to the minor, and which, in the hands of the tutor, is to be administered upon ; but the under-tutor is without any authority to execute such a judgment against the tutor, as long as the latter remains in office. The under-tutor has no right to receive any part of the property, or funds belonging to the minor. If they are considered unsafe in the hands of the tutor, or if there ex-ists against the latter any sufficient cause, the under-tutor is authorized to sue for his removal, and for the appointment of another tutor, who, upon giving security, would be competent to enforce the minor’s rights and claims against his former tutor. The execution in this case directs the Sheriff to seize and sell the property of the tutrix and co-tutor, and to pay the funds thus obtained to the under-tutor. The latter being clearly unauthorized to receive and administer those funds, would have had to hand them over to the tutrix and co-tutor, who were alone competent to receive them. Thus, the money made on the minor’s execution would return into the hands of the very persons out of whose property it was levied. If the whole amount of the judgment was obtained in the same way, the result would be to convert into specie in the hands of the tutor, all the property on which the minor had a legal mortgage, and thus deprive him of the security provided for him by law. A proceeding which would lead to such preposterous consequences, cannot receive our sanction. The tacit mortgage of a minor can be enforced against' a tutor, only at the termination of his functions, in one of the modes provided for by law. If the minor, or his legal representative, does not then find in the possession of the tutor property sufficient to satisfy his claim, in consequence of sales made by the tutor, or [54] of executions levied on his property, his tacit mortgage may be enforced against the purchasers in the order pointed out by art. 715, of the Code of Practice. Under this view of the case, it becomes unnecessary to examine several other questions presented by the record. If the execution was unlawfully issued, every thing done under it is null and void. We have been requested to increase the damages awarded by the court below on the dissolution of the injunction ; but this we cannot do, as no amendment has been prayed for by the appellee as required by arts. 888, 889, 890, of the Code of Practice. Judgment affirmed.