Boutté v. Executors of Boutté

On the Merits.

Manning, C. J.

Charles and Francois Boutté were brothers, and owned an improved lot in this city together, but in unequal parts. Charles owned one third only — Frangois, the residue. Charles died leaving thirteen heirs. Afterwards Frangois died, leaving a widow and twelve children, and his executors duly opened his succession. Some of the heirs of each brother were and are minors. This improved lot is their only property, but it is valuable, being appraised at forty thousand dollars.

Nine of Charles’ heirs are plaintiffs in this suit, and the executors of Frangois, and the four other heirs of Charles are defendants. It is an action of partition, instituted before the Second District Court of New Orleans.

The question of jurisdiction has been pretermitted in the printed briefs on both sides. Nevertheless we think it decisive of the controversy. There has been great doubt and incertitude in the profession as to the forum which has cognisance of- partitions under the constitution of 1868, and there was good reason for it. The counsel of Mrs. Berens, ■the adjudicatee of the property at the sale under the decree for partition, refers us to art. 1022 of the Code of Practice as conclusive of the dispute — all partitions of succession property shall be made by the court of probates of the place where the succession is opened. But this is not a partition of succession property. It is property the partition of which one succession, a distinct entity, claims of another.

All successions, says the constitution, shall be opened and settled in the parish courts, art. 87. And therefore the succession of each one of the brothers by itself, and apart from the other, must be made in the *182court having probate jurisdiction. No one would think of mingling the two successions in a common mortuary proceeding, because the decedents together owned property in common. This distinction seems to have been in some sort in the mind of the draughtsman of the petition, though he failed to act on it. He did not allege that the succession of Charles Boutte was opened in the Second court, and that certain property belonging to its heirs was required to be partitioned among themselves, for in that case the Second court would unquestionably have had jurisdiction of the partition of the property of that succession, i. e. of the one third of the improved lot. The allegation is, that certain named persons own property in common with the succession of Erangois Boutté and other named persons — that these co-proprietors own it in certain designated proportions — that the petitioners are unwilling to remain any longer in a state of indivisión with their co-proprietors, and ask for a partition. Here is not a succession to be settled, and property, exclusively its own, to be partitioned among the heirs to that succession. If after Charles’ death, Erangois, who survived him, had immediately thereafter sued the succession of Charles for a partition of this property, can it be doubted that the court of ordinary jurisdiction would- alone have had cognizance of the action ? How is the case altered when, Erangois being also dead, a partition is sought of the property owned by two distinct juridicai beings? The Second Court had not jurisdiction of the action, just as it is without jurisdiction of an action of partition between two individuals, who are majors and own property in common in their own right.

But if it had jurisdiction, it had not the proper parties before it. The Codes say; — the suit for partition ought to be instituted by the heir who wishes the division and the co-heirs or their representatives must bo cited. Civil Code, art. 1252 new no. 1329. The heir desirous of obtaining a partition shall present his petition praying that his co-heirs be cited. Code of Practice, art. 1024.

None of the heirs of Erangois Boutte are parties to this suit, and his executors are without authority to represent them, and without power to represent the succession in a suit of this kind. The heir is not bound by the judgment of partition if he was not a party to the suit in which it was rendered. Guidry case, 16 La. 157. All the parties interested in the property to bo partitioned must be parties to the suit which demands the partition. Kendrick’s case, 19 La. 36. Chalon v. Walker, 7 Annual, 477. In this last case, like the one before us, the executor alone was cited, and though there was a dissenting opinion read by Justice Preston, he concurred with the court on that point, saying — the action for partition is undoubtedly a real action, and the heirs should have been made parties to it.

*183It is said in appellee’s brief that the succession of Erangois Boutte is insolvent, and as his heirs have no interest, they need not be made parties to this suit. The record does not allege or shew its insolvency. But assume that it is insolvent, then its property can be sold to pay its debts under an order of sale from the probate court. One does not resort to an action of partition of realty to obtain the sale of property in which creditors alone are interested. The plaintiffe treated the suc-cession as solvent by suing for a partition of its realty. But a better ^answer is, that this suit is not a proceeding in settlement of a succession, but a proceeding to separate the interests of one succession from the interests of another succession, leaving each of them to be separately settled in the probate court after that separation is effected. The articles of the Code, and the decisions of this court, cited by the appellee, have reference to cases wherein the co-heirs of the same succession are seeking to divide property which is common to all of them, and which they derived from a common ancestor.

The order of May 25 1876 directing the sheriff to put the purchaser in possession, and the judgment of August 5 1875 decreeing a partition •of the property by licitation, are erroneous, and therefore

It is ordered adjudged and decreed that the judgment of the lower •court decreeing a partition and sale of the improved lot owned by the •two successions of Charles and Erangois Boutte, and the order to the sheriff to put Mrs. Berens in possession thereof, are annulled, avoided, -and reversed, and that the appellee pay the costs of this appeal.