Hickman v. Thompson , 24 La. Ann. 264 ( 1872 )

Wyi/y, J.

The plaintiff as executrix of the will of her late husband, Peter T. Hickman, injoins the foreclosure of tho mortgage which she in her individual capacity granted to the transferrer of the defendant on her undivided half of the community property described in the petition, alleging that said property belongs to tho succession of her said husband which has never been closed; that large claims have been preferred against it, and that the mortgage which she granted'is void because of vagueness in tho decription of tho property. The answer admits that tlio defendant sued out the order of seizure and sale to collect tho mortgage notes for 89000 executed in 1867 by the plaintiff, in her individual capacity,.on her half of tlie community property, and avers that the pretended administration of said property, as belonging to the succession of Peter T. Hickman, is a mere pretext to shield the property of tho plaintiff from her creditors; that the plaintiff herself has long since disregarded it, she and the heirs having used it as their own. Changing the executory proceeding to an ordinary action, the defendant prays judgment for $9000 on the notes and that the mortgage given to secure them be recognized and enforced on the property therein described. The court perpetuated the injunction and rejected the demand of the defendant and he has appealed.

We think the court'erred. Mrs. Hickman, after the dissolution of the community, had the undoubted right to alleviate or mortgage her half of the property. She chose to mortgage it to secure the notes held by the defendant. She failed to pay the notes and tlie defendant seeks to foreclose the mortgage. Why can he not do so? Why can not a mortgage creditor make the forced sale of such property as his debtor might convey by a conventional sale ? We see no reason why the interest of the plaintiff in tlie property mortgaged may not be sold by her creditor.

The executrix lias been in office over five years and no claims seem to have been established against the succession of her husband. It is further shown that she has received $ 50,000 for cotton remaining after the death of her husband. No tableau or account has ever been filed. From the evidence we are satisfied that the defense that largo claims are preferred against the succession, is a mere pretext to shield her half of the community property from the just pursuit of her creditors.

The description of the property is sufficient. Let the judgment appealed from he annulled, and let there he judgment for tho defendant for nine thousand dollars with eight por cent, per annum interest thereon from tho seventeenth December, 1867, and all costs, and let tlio mortgage be recognized and enforced on the property described in tho act of mortgage, and let the same be sold according to law to pay the amount of this judgment.