King v. Atkins , 33 La. Ann. 1057 ( 1881 )

The opinion of the Court was delivered by

Fenner, J.

The motion to dismiss on the grounds that there is no judgment as to Mrs. Gayle, one of the co-defendants and a necessary party, and no appeal as to her, has no merit.

Both the defendants were cited. The case was put at issue as to both — by default as to Mrs. Gayle, and by answer as to W. T. Atkins. Upon these issues the case was tried. Had judgment been in favor of plaintiff, the judgment by default against Mrs. Gayle would have been confirmed and judgment would have gone against both defendants. As the decision rejected plaintiff’s demand, of course the default was not confirmed, and judgment was rendered “for defendants.”

The appeal was taken, at the same term, by motion in open court, and, therefore, both defendants are properly before us as appellees.

The motion to dismiss is denied.

This suit is brought to annul, as a fraudulent simulation, a sale of a bouse and lot in Monroe, made by the sheriff under a writ of sale issued in the succession of ¥m. H. Gayle, to which succession the property belonged.

The following statement of anterior facts is necessary for the understanding of the case.

W. H. Gayle died in 1867, leaving property and large debts. His widow, Mrs. Ann L. Gayle, qualified as administratrix of his succession.

The personal property was first sold, and a provisional account filed by her, which, after trial of oppositions thereto and appeal to this Court, was amended and homologated.

Thereafter, at the instance of creditors, an order was issued for the sale of the real estate in the parish of Ouachita, including the property now in controversy.

W. T. Atkins became the adjudicatee of the last-mentioned property for $5000, and received for the same the joint deed of the administratrix and of the sheriff, in which the administratrix, alone, acknowledges to have received from him the price of .$5000.

The administratrix then filed her final account, in which she charged herself with the above $5000, as well as with proceeds of sale of other property. After distributing other funds in payment of special and general privileges, there remained $5456 50, being the above $5000, and $456 50 proceeds of other property, which she separately distributed as follows : to the balance of general privileges $3631 13, and the rest ($1834 27) to go to judicial and legal mortgages on the property in favor of herself. To this account sundry oppositions were filed,, disputing several of the general privileges and the mortgages claimed by the administratrix, and also demanding that she should be charged with rents of the property here involved during the time of her administra- ■ tion while she had occupied it as her residence.

Upon appeal to this Oourt, the account was amended, by rejecting sundry privileges allowed on the account, rejecting the administratrix’s claim to a legal mortgage, charging her with $3000, as rents, and with $2175, as proceeds of sale of other property not properly accounted for, and in other respects; and it was ordered that, “ as thus amended, the account of the administratrix be approved and homologated and the funds distributed accordingly.”

Upon her failing to settle with creditors according to this account, a demand execution was issued against her and returned unsatisfied. Thereupon, the creditors, finding that the administratrix had no property subject to execution, and that the surety on her bond was insolvent and worthless, and convinced that the sale to Atkins was' a simulation, and that he had never paid the price, brought a direct action, in their own right, against the present defendants, setting • up these facts and praying that; unless Atkins should comply with the condition of the sale and pay the price, the property should be decreed to belong to the succession, and should be restored thereto.

To this suit, Atkins interposed exceptions, the nature of which it is not necessary to state, which were sustained by this Court, which said that, on the failure of the administratrix to pay over the proceeds of the sale, the remedy of the creditors was to apply for her destitution from office and the appointment of a new administrator “ who would then inquire whether the price has, or has not, been paid by Atkins, and whether he holds under a real or simulated title.” Swan vs. Gayle, 29 An. 574.

Acting on this express suggestion, the creditors appliéd for, and obtained, the destitution of Mrs. Gayle, and the appointment of the present plaintiff as administrator, who brought this action, alleging, in substance, that the adjudication of the property to Atkins, who was the brother of the administratrix, was an attempt, by collusion between them, to place the property beyond the reach of the creditors; that the pretended price had never been paid; that Atkins had not the means to make the purchase and had not done so; that plaintiff had called upon him for payment of the pretended price, which had been refused; that the administratrix, who was residing on the property at the time of the sale, had continued to reside there ever since, and there had been no real change of possession; and he demands the nullity of the sale that the property be decreed to belong to the succession and restored to his possession as administrator, and for rents at the rate of $600 per annum.

Several technical defenses are interposed, as follows:

1st. That the succession of W. H. Gayle was closed by the homologation of the final account of the administratrix; that a new administrator, therefore, could not be appointed, and that plaintiff is thus without capacity to stand in judgment.

Manifestly the homologation of the final account did not close the succession or terminate the administration thereof. The homologation only fixed and defined the duties of the administratrix in paying out and distributing its funds in accordance therewith. Not until she had actually complied with the judgment, could she be discharged; and, as she never did comply, her office did not terminate, the succession remained open, and the court was entirely competent to destitute her, and appoint a new administrator.

2nd. The petition was excepted” to, as combining inconsistent actions, viz, the revocatory action and the action in declaration of simulation, and plaintiff was required to elect. Without deciding whether or not those two actions are inconsistent, we deem it sufficient to say, with the District Judge, that the petition discloses a sufficient action to declare a simulation, and that no other remedy is asked.

3rd. The plea of res judicata. This plea, in a technical sense, certainly has no application. It will not be pretended that the cause of action set up in this case has been determined by any prior judgment. Counsel, however, evidently intends to plead mere estoppel resulting from prior judicial allegations and proceedings, all based on the supposition that this property had been really sold, that the price had been paid, and was actually in the hands of the administratrix, which suppositions were based on the official declarations of the administratrix, which the creditors had no right to question or attack and which they were bound, at least in the proceedings referred to, to accept as true.

There is absolutely nothing in those proceedings to estop the present plaintiff, as representative of the creditors, to prosecute this action based upon the failure of the former administratrix to pay over the funds which she pretended to have in hand, upon the natural consequent inquiry as to whether she had ever received said funds, and upon the alleged discovery of the fraudulent simulation now charged.

áth. The exception of prescription to the claims of creditors represented by the administrator, does not “lie in the mouths” of defendants, is irrelevant to the present issue, and cannot be raised between the present parties. Moreover, in the judgment of the Supreme Court on the final account, rendered in July, 1875, we find a judicial recognition of the claims of these creditors, which is a judgment in their favor, and certainly not perempted.