Succession of Durnford

Garland, J. The first question is, whether McDonogh is a creditor or not. That is, we think, clearly proved by the production of an authentic act, in which a balance of $9763, is acknowledged to be due, by Durnford, under whom the opponents claim. The judge below, therefore, did not err in allow ing this sum to the curator. The next question is, as to interest on the aforesaid sum at the rate of ten per cent, which is claimed by McDonogh. In the no — 494 — tarial act nothing is said about interest, and no written promise to pay it is shown, except, that the curator produces two receipts, signed by himself, dated April 13th, 1824, and October 12th, 1824, which it is proved were found among the papers of Durn-ford after his death, in which he (McDonogh) acknowledges to have received of Durnford two half yearly instalments of interest on the above mentioned sum, “ as per agreement.” These receipts, it is contended, amount to an agreement to pay interest at the rate óf ten per cent; or are, at least, a .recognition in writing of an existing contract to pay it. We cannot regard them in either light. An examination of the terms of the receipts shows, that the agreement to pay interest was a verbal one ; for, in acknowledging the receipt of the interest, it is said, it is paid “ as per our agreement;” but in describing the debt or sum in which it had been paid, it is said to be on “ principal due me from you, as per your acknowledgment in act passed before Mr. De Armas, notary, &c.” This debt was contracted whilst the Code of 1808 was in force, which expre ssly prohibited the recovery of conventional interest, unless the rate was “ fixed in writing, and testimonial proof of it is not admitted in any case,” Code of 1808, p. 408, art. 32. Such is the provision of the present Civil Code, and our settled jurisprudence. 12 Mart. 21. 7 La. 105. The receipts prove no more than, that up to October, 1824, Durnford was willing to pay interest at the rate of ten per cent; but subsequent to that period they prove nothing. He was not legally bound to pay it; and it is possible he ceased to do so, knowing that he was not bound. The receipts cannot be considered as recognitive acts, as they have none of the legal requisites of such instruments. The judge of the Court of Probates was, therefore, correct, in reducing the rate of interest to five per cent per an-num, to commence from the opening of the succession on the 3d of May, 1826, when Durnford died. Code of Pract. art. 989. The next cause of complaint against the curator is, that he has not collected, or used due diligence to collect a note for upwards of $16,000, made by a Mrs. Bingham or her daughter, to the order of, and endorsed by Valcour Aime. It is said, that the parties to this note were solvent at the time it fell due, and continue to be able to pay ; at least, that Aime is so. The history — 495 — of this note is somewhat remarkable, and it is shown, that various eiforts have been made to recover it. A suit is now pending on it, and the counsel engaged in it say, they see no probable chance of a judgment being obtained. On the part of Aime, it is strenuously urged, that the note was obtained fraudulently. The maker of the note long since became insolvent; but the situation of the endorser is better than it was when the note matured. By this settlement the heirs will become possessors of this debt; and, as the defendant is able to pay, they can prosecute it to judgment, if they think proper. The whole question is one of fact, and we see nothing to convict the curator of such negligence as will make him liable. The judge below was, in our opinion, correct in overruling the opposition. The next ground of opposition is, to a charge of $21,500, made by McDonogh against the succession, as damages for a breach of warranty, in the sale of a tract of land on the Bayou des Families. In the year 1823, Durnford sold the land to McDonogh for $4000, with a full warranty. In the year 1830, a suit was instituted by S. Roman, as syndic of the creditors of De Gruy, against Hennen and McDonogh, which was finally decided in favor of the plaintiff, and the defendants lost the land, by a judgment of the District Court of the first district, affirmed by this court, in July, 1831. 2 La. 544. At the time this judgment was rendered, it does not appear that the heirs of Durnford, who now oppose this demand, were in the country, nor had ever made themselves known. They certainly had not made any claim to the succession, which was duly represented by McDonogh, upon whom devolved the defence of the rights of the estate, and also his own, the nominal defendant (Hennen) having disclaimed any title. After the judgment, the syndic of De Gruy took out no process to enforce it, nor to cause himself to be put in possession of the lands until the year 1837, when he sold it at public auction for 21,500, and a person named Hutchinson purchased it, who afterwards sold it to McDonogh. After the judgment in July, 1831, it is not clearly shown whether McDonogh remained in possession of the land, or not. So far as we can ascertain the facts, it is probable there was no actual possession by any one, the land having no improvements on it, except a small cabin and a — 496 — few peach trees. This sum of 21,500, McDonogh claims as the measure of damages, it being, as his counsel contends, the value of the land when he was really evicted, that is, in 1837. The sale from Durnford to McDonogh, took place before the adoption of the present Civil Code, and the contract of warranty between them must be regulated by the provisions of the Code of 1808, (10 La. 117,) which says, (p. 354, art. 57,) “ If, at the time of the eviction, the thing sold has risen in value without the buyer having contributed thereto, the seller is bound to pay him the amount of augmentation of value, above the price of the sale.” See also, 10 La. 120. To ascertain the amount of damages on the warranty, it therefore becomes necessary to fix the time of eviction of McDonogh, from the land. Eviction, we are told, “ is the loss, or deprivation of the buyer of the thing he has bought, in consequence of the right of a third person established in a competent tribunal.” Bouvier’s Law Diet, verbo, Eviction. Toml. Law Diet., same word. It would, therefore, seem, that the date of the rendition of the final judgment, or order to carry it into effect, when it is rendered by this court, is the time of eviction. The party is then declared to have no title, and he can proceed at once against his warrantor. The Code of Practice, arts. 385, 386, contemplates the rendition of a judgment against the warrantor, at the same time that a judgment is rendered against the principal; but, under some circumstances, it is impossible to do it, and the principle we suppose is not changed thereby. In those cases, where a judgment is rendered, the standard of damages is the value of the thing at the time of the judgment of eviction. We are, therefore, of opinion, that the date of the recording of the judgment of this court in the District Court, and of the ordering it to be executed, is the proper date at which to fix the time of eviction. The Judge of Probates in his judgment held, that the judgment of the syndic of De Gray against Hennen and McDonogh, was not obligatory upon the heirs of Durnford, upon the question of eviction, and upon that ground rejected the demand for the $21,500, being of opinion, that it was necessary for McDonogh to institute a separate action against them to establish and liquidate — 497 — mand ; and he relies upon articles 122, 123 of the Code of Practice, and article 1205 of the Civil Code. The two first articles authorize testamentary executors, curators, &c., to appear and defend all actions brought against the successions they administer, but in real actions, such as those of revendication and the like, the action must be brought against the executors and heirs present or represented. It will be observed, that these articles provide for two kinds of successions, and make some difference between testamentary and vacant estates. Article 122 sáys, that all kinds of actions may be brought against the curators of vacant estates, when the heirs are absent and not represented in the State. By these last words, “ represented in the State,” we do not understand, that the Legislature meant those heirs represented by an attorney of absent heirs appointed by the court, but those who had caused themselves to be represented by an agent, or a curator duly appointed. This court has said, that the curator of a vacant succession is the proper representative of the heirs ; and, that a judgment against him, in his capacity of curator, is as valid and efficacious against the succession, as if rendered against tl^e heirs. 3 La. 276. The next question raised by the counsel for the opponents is, whether the Court of Probates has jurisdiction of the demand, as between McDonogh and the heirs. Upon this point, we have no doubt. The action of warranty, though in some degree a real one, is not an action of revendication, as between the war-rantor and warrantee, but properly an action on a contract, by which one party agrees to guarantee another against the damage or loss that he may incur, in consequence of the title to the thing sold being found defective or void. It has frequently been held, that a Court of Probates may incidentally inquire into titles to real estate, when it is necessary to enforce their admitted jurisdiction. 15 La. 455. In this case no question of title is raised, as between McDonogh and the heirs. They do not pretend, that the case of De Gray's syndic was not properly defended, nor, that they possessed, or do now possess, any other means of defeating that action, than were used in its defence. The questions at issue are, whether there was a warranty, an eviction, and the amount — 498 — of damage sustained ; and over them the Court of Probates has jurisdiction. It is further urged by the counsel for the opponents,'that, the demand set up by McDonogh cannot be offered in compensation, until it is liquidated by a suit between them. We are unable to see the force of this objection. The demands which the opponents have on McDonogh, are as unliquidated and vague as those he presents, and they may all be examined and settled in this case. If this be not true, it would result in giving the opponents a judgment which they might enforce, obtain possession of the money, and leave McDonogh without the means of satisfying any judgment he might hereafter obtain. The plea of compensation is one that should be favored as far as the law will permit, as it prevents law suits, and enables parties in one suit to adjust many difficulties. As soon as the money belonging to the succession came into the hands of McDonogh as curator, and he made a distribution of it, his debt for that sum was extinguished, and by reference to the account, it will be seen, that the interest ceased upon every payment made. It is, lastly, urged upon us, that the demand set up is prescribed. Upon this point, we think, the reasoning of the Probate Judge is unanswered ; and we concur in opinion with him, that the plea of prescription must be overruled. Until the heirs appeared and claimed the succession, McDonogh was its legal representative, and could not enforce a demand, in his own favor, against it. It was in fact not necessary for him to do so, to the extent of the funds in his hands, for as to the amount of them his claim was compensated, and whenever theheirs appeared to claim that money, he could oppose his claims by way of exception, although he might not be able to enforce them in a direct action. We cannot permit the heirs to remain quiet for a series of years, and then turn about and attempt to defeat a creditor, who has acted as curator, by a plea of prescription. It is, therefore, ordered and decreed, that the judgment of the Probate Court be affirmed in all respects, except so far as it relates to the demand of $21,500, set up by McDonogh against the opponents, as the value of the land of which he was evicted by the syndic of De Gruy, and the balance fixed against the curator, — 499 — in which respects the judgment is annulled and reversed, and the case remanded for a new trial, for the purpose of ascertaining, by competent testimony, the value of the land sold by Durnford to McDonogh at the time of eviction, as herein fixed, and of stating the account between the parties when said value is ascertained ; the appellees paying the costs of this appeal.* Footnotes [*] W. W. King, for a re-hearing. In the argument of the question of prescription as to the claim of McDonogh for damages, it was supposed that the decision would turn upon the date at which the eviction occurred, the counsel for McDonogh contending that it did not occur till 1837, and the counsel of the heirs that it occurred in 1831. This court has decided that the eviction must date from, the rendition of the judgment in 1831. If prescription could run, under the circumstances of this case, sufficient time had elapsed to bar the claim of McDonogh. Upon this subject, it is assumed by the court, that “ until the heirs appeared and claimed the succession, McDonogh was its legal representative, and could not enforce a demand in his own favor against it.” The plea of prescription rests upon the correctness of this position. On behalf of the heirs it is respectfully urged, that McDonogh could have enforced his claim contradictorily with the attorney for the absent heirs ; and that this would have necessarily been the case, had he complied with the requirements of the law for the administration of vacant successions. By art. 1205 of the Civil Code, the counsel for tho absent heirs represents them in all acts required by law to be done. This authority is ample, and he must necessarily act for the heirs and represent them, in contesting all claims brought by the curator against the estate. By art. 1114 of the Code, a creditor is preferred to other persons, for the curatorship. By art. 1183, of the same Code, the curator is bound to render an account of his administration at the end of the year. By art. 1004 of the Code of Practice, objections must be made within three days to the curator’s account. The account can be homologated after advertisement. Now, under these provisions, suppose a creditor to be appointed curator. He is required by art. 1142 of the Civil Code to keep a list of all debts due by the estate,and of course of debts due by the estate to him. At the end of the year he must file his account, showing the payments made by him. Suppose he retains a portion of the money to pay the debt due to himself; is not this legal ? Could not the judge homologate the account? Most assuredly he could. Not only could this be legally done, but by law it is made his duty thus to render his accounts, including payments to himself as well as to others. The surplus, if there be any in his bauds, is to be deposited with the State treasurer. Civil Code, art. 1184. Code of Pract. art. 1009. The great object a creditor has in view in becoming curator, is to secure the payment of his debt. The law requires that all this shall be done, and the curator’s account homologated at the end of one year. This could not be done if the curator coidd not present any claim against the estate. The law then contemplates that he should present his claim ; and this, whether the heirs appear or not. For if tire heirs do not appear, the surplus is to be deposited with the State treasurer. Civil Code, art. 1184. Code of Pract. art. 1009. Vacant estates are generally administered by creditors. The universal practice in the lower courts is, for them to present their claims against the estate, and they are passed on and homologated contradictorily with the attorney for the absent heirs and the other creditors. Without pursuing this course, it would be impossible ever to settle vacant successions in the manner contemplated by the articles of our Codes above referred to. It is not neeessary for the settlement of successions that the heirs should present themselves. If they do not, the money goes into the State treasury. The attorney for absent heirs, stands in the same relation to the curator, that an — 500 — under-tutor does to the tutor of minors. Civil Code, art. 301. The curator represents the estate in everything, except where his interests conflict with those of the heirs. For such a ease was the office of attorney of absent heirs created. We conclude that the court erred in assuming the position that McDonogh could not present his claim against the estate. Civil Code, arts. 1146, 1183, 1184. Code of Pract. 1009. As McDonogh could have presented his claim, and as it was his duty to have done so, and he did not, he is barred by prescription. Prescription runs against all persons, unless they are included in some exception established by law. Civil Code, art. 3487. Prescription runs against a vacant estate, though no curator has been appointed to such estate. Civil Code, art. 3492. If it runs against a vacant estate, it must also run in favor of a vacant estate. Elkins’ Heirs v. Davis, 9 La. 136. The fact is not contested, that McDonogh did not present his claim for damages against the estate for two years. Re-hearing refused.