Gibbs v. Joseph A. Lum & Co.

On Rehearing.

The opinion of the court was delivered by

Spencer, J.

Our predecessors granted a rehearing in this cause, at the June term of 1876, on application of plaintiffs.

"We do not think the rehearing extends to the decision on the motion to dismiss. But, if it does, we think that it is correct, and ought not to be disturbed.

Most of the facts material to the case are stated in the former opinion of this court, and need not be again recapitulated.

The defendants excepted to the third opposition of plaintiffs on the ground that the opponents could not proceed to enforce their claims and mortgages against their tutor or his property until the amounts due them had been ascertained and liquidated on final account of the tutorship. It seems that one of the opponents, Elizabeth Gibbs, had attained majority, but the other, Joseph Gibbs, Jr., was a minor still at the date of filing this suit. It is well settled, and, indeed, elementary, that a minor can not, pending the tutorship, execute his claims against his tutor; that such demands become executory only at the expiration of the tutorship. Being under tutorship, any moneys recovered would of necessity go immediately back into the hands of the tutor, who would thus as it were have money taken out of one pocket and immediately put back into another. He would be enforcing the collection of a debt from himself, and the very act of paying the debt would, instead of extinguishing it, give it life anew.

This court well said in 12 An. 361: “ It may well happen that when *the minors attain majority the'tutor shall owe them nothing; that all may have been consumed in payment of debts, expenses of education, etc.; or it may be that the minor may die before attaining majority, and that the whole, or a part of the indebtedness of the tutor, may be thus extinguished by confession.

“When the minors shall have attained the age of majority, or shall be emancipated by marriage, or when the tutrix shall be from -any other cause compelled to account, and the claims of her children against her shall have been liquidated, and the balance in their favor ascertained, the recourse of the children will be, first, against the property then in possession of their mother and tutrix, and it may be that she will have prop-' erty sufficient to satisfy their claims. But if not, then the minors will *532have their' recourse against the third possessors of property alienated by their mother since the date of her appointment as tutrix.”

To allow the claims of the minor to be executed against his tutor’s property, pending the tutorship, would be to open the door to great frauds on minors, and put it in the power of the tutor to destroy the security which the law so zealously preserves for the minor’s benefit; for all the tutor would have to do would be to enforce or have enforced against himself the claims of his ward, and then pocket the proceeds of the sale of his own property so sold under the minor’s claims.

These views are, we think, conclusive against the right of the minor, Joseph Gibbs, Jr., to intervene and claim any part of the proceeds of the property sold in this case.

As to Elizabeth, having attained her majority, she stands in a somewhat different position. But we think that until she has, by proper proceeding in the probate court, ascertained and liquidated, contradictorily with her tutor, her rights and claims against him, she is not in position to enforce them. It is manifest that liquidation can not be had in this-case before the district court, because the proper parties are not before it. Her demands must be established against her tutor and father. He must, therefore, be a party defendant, and there must be proper pleadings to serve as the basis of a judgment. In this case her tutor is not a party to this suit. The tutor of Joseph Gibbs, Jr., or rather Joseph Gibbs, Jr., by his tutor, is a co-plaintiff with Elizabeth. There is, and can manifestly be, no proper issue for settling her claims against her tutor. Again, the district court could not take jurisdiction of a demand by a minor against his tutor for liquidation of the affairs of the tutorship. In the case before us, it appears in evidence that Elizabeth Gibbs has commenced in the parish court, and that there is now pending therein, a suit against her tutor for settlement of his account of tutorship. That court is certainly the proper forum for such a contest, as. it has exclusive-probate jurisdiction.

The law manifestly did not vest both the district and parish courts with such jurisdiction, and such an interpretation would lead to endless confusion and conflicts of jurisdiction, since in this very case, where the district court has adjudged plaintiffs to be large creditors of their tutor, the parish court may render a very different judgment. We, therefore, think that so far as relates to any claims of opponents, under their legal mortgage, their demands should be dismissed, reserving to them their right to pursue hereafter such recourse on the property sold as the-law permits. It is, we think, indisputable that they have preserved by proper registry a legal mortgage upon the property of their tutor to the extent, at least, of $4250.

The law prior to January 1, 1870, gave them a legal tacit mortgage-*533without registry. The act of 1869 provided that this legal mortgage could be preserved by recording “ an abstract of the inventory,” and that its recordation “ shall operate a mortgage on all present and future property of the tutors, for all their acts, until they are relieved,” etc.

'The conventional mortgage of Lum & Co. having perempted, their judicial mortgage is inferior to this legal mortgage, and a sale under the Lum debt did not divest the minors’ mortgage, and the property sold is still liable for such amount as on final settlement may be due them.

So far as concerns the opponents’ claim under the conventional mort•gage to Henderson, their rights are clearly lost for want of reinscription; but it is manifest that, as this loss is the direct result of the negligence or fraud of their tutor, they are his creditors for its value, and that their claim in this regard is protected and preserved by their legal mortgage, which secures them against “ all acts” of maladministration of their tutor. It will, therefore, be a proper charge against the tutor in the settlement of accounts, but can not be enforced now, and in this case, as a conventional mortgage right.

It is proper here to remark that, the opponents’ rights not being affected by the sale under the Lum judgment, we do not see that they have any interest in contesting it. But if they had, we do not think it could1 foe successfully done. A debt barred by prescription still exists until it is pleaded; and even afterward there is always a natural obligation remaining which is a good consideration for a new promise to pay. It is not necessary for us, under the view we have taken, nor, indeed, under the facts of this case, to express any opinion upon the proposition announced by our predecessors in this case, that the surviving husband may after the death of his wife and dissolution of the community revive by acknowledgment a debt already prescribed, so as to make it exigible upon the assets of the community, including the wife’s share thereof, since, as we understand the record, only the husband’s interest in the community property was sold. And whether so or not, the minors, not being parties to the sale, would not be bound by it if their share of the community was not legally liable, upon which, as stated, we express no •opinion.

It suffices for the purposes of this case, that the Lum judgment was valid against Joseph Gibbs, Sr., and this seems tobe conceded.

It is therefore ordered, adjudged, and decreed that the judgment of this court heretofore rendered be so amended as to reserve any rights opponents may have under their legal mortgage to hereafter pursue by hypothecary action the property sold under execution in case of J. A. Lum & Co. vs. Joseph Gibbs; Sr., and that in other respects said decree remain undisturbed.