Prothro v. Prothro , 33 La. Ann. 598 ( 1881 )

The opinion of the Court was delivered by

Bermudez, C. J.

This is a petitory action, in which the plaintiffs seek to be decreed the owners by inheritance of certain real estate in the possession of defendants. They charge that the latter claim title from one Boult, but that he never acquired the ownership of the property, for the reason that, when it was adjudicated to him at the probate offering in 1856, he was the administrator of the successions of their father and mother, was incapacitated by prohibitory law from purchasing any effect thereof, and that the pretended adjudication thereof was an absolute nullity.

The defendants answered, claiming title from one Carroll, who had acquired the property at a judicial sale thereof under execution in his favor against Boult. They called Carroll in warranty, who first opposed a number of preliminary defenses, and finally upheld the validity of his title and pleaded prescription.

The heirs of Boult, made parties, pleaded the general issue.

From a judgment rejecting their demand, the plaintiffs have appealed.

Although the syllabi of the briefs, present fourteen points on behalf of plaintiffs and .twelve on. the part of defendants, we think it necessary to pass upon one only,’ which appears decisive of the controversy.

The voluminous record discloses, as salient facts, that the plaintiffs are the only descendants of their father and mother, who left a considerable estate, heavily encumbered, and which was in charge of Boult as administrator; that, with the previous authority of two of the plaintiffs, one of whom was of age and authorized by her husband, and the other had been fully emancipated, and contingent on a valid divestiture of the rights of the third heir, who was at the time a minor, Boult agreed to purchase all the succession property, on assumption of all the debts strictly due by the estate, and on payment to each heir, of $23,000; that on the 8th of July, 1856, Boult became the adjudieatee; that the two heirs first mentioned and a family meeting on behalf of the minor, whose deliberations were homologated, ratified the sale; that subsequently, Boult settled with the three heirs, the third having become of age, and gave them money and property in payment of the amount agreed upon; that afterwards Carroll, a judgment creditor of Boult, seized the property in dispute, became the adjudieatee thereof, on the 23d of February, 1869, and in 1873 and 1876 sold it to the defendants, in whose possession it has since remained.

This suit was brought in February, 1879, nearly twenty-three years after the adjudication to Boult, after his death and after the destruction by fire of the court-house of Winn parish. Fortunately copies had been retained by Boult of many of the important documents in evidence in this case.

The plaintiffs claim, that the adjudication to Boult, in 1856, is an absolute nullity, which cannot be ratified.

In support of that position, the learned counsel who represent them have referred us to many authorities, which have received our careful attention. Ear from questioning, we formally admit their correctness in the cases in which the rulings were made, but we do not think that they are entitled to application in a controversy like the one at bar.

The nullity charged, although one of public order, was established for the benefit of creditors and heirs, but was not absolute so as not to be susceptible of being waived or ratified by those in whose favor it was created.

We bear no complaint from any creditor, and the heirs who raise their voice against the sale cannot be heard, as they have formally acquiesced in and ratified the sale and received therefrom the #69,000 stipulated in their favor, which they have not offered to return.

12 L. 122; 3 An. 536; 9 An. 216; 16 An. 135; 4 Toull. 553; 7 Toull. 561, 8 n. 518; Dunod Prescr. part 1, ch. 8, p. 47; 3 Delvincourt, p. 66, 126; Rogron, C. N. 1596, Locré 4, 195, 149; Duranton, 16 n. 138; Duvergier, Vente, n. 194; Troplong, Vente, 1, p. 260, n. 481.

We find no error in the judgment complained of.

It is, therefore, affirmed with costs.

Mr. Justice Levy recuses himself, having been of counsel.