Gumpert v. Signal

152 So. 403

• Court: Louisiana Court of Appeal
• Decided: January 29, 1934
• Docket: No. 14684.
• Status: Published

Opinions

HIGGINS, Judge.

The issues presented in this matter result from the trial judge making 'absolute a rule taken by the civil sheriff to partially cancel and erase the minors’ general mortgage in so far as it affects a certain piece of real estate sold by the sheriff under executory process >and referring the minors’ claims to the proceeds of the sale.

The rule was not defended by the tutrix of the minors, but was resisted solely by the recorder of mortgages, who alone has appealed.

In our original opinion, which was not unanimous, we reversed the judgment of the trial court and dismissed the rule. 151 So. 136.

The record shows that on March 2, 1923, Solomon Signal, who was married and had minor children, conventionally mortgaged the community property herein involved for the sum of $463 in favor of T. Pick, and caused the same to be duly recorded; the mortgage containing the pact de non alienando, waiver of appraisement, and confession of judgment clauses.

Solomon Signal died on September 20,1923, leaving a widow and five minor children and one major. Mary Lazard, the widow of the deceased, on November 23, 1923, caused his succession to be opened in the civil district court for the parish of Orleans; the inventory showing that the entire estate consisted of community property which was appraised at $1,300. An abstract of the inventory was recorded in the mortgage office on December 28, 1923, and the widow qualified as natural tu-trix of her minor children.

On February 24,1926, T. Pick, as the owner of the mortgage note, foreclosed via exeeutiva against the widow individually and as natural tutrix of the minors and the major son to recover the sum of $463, with 6 per cent, interest from March 27,1924, until paid, subject to a credit of $30 on account of matured interest, and notice of demand for payment was served on the parties.

Mary Lazard, as widow of Solomon Signal, in her own behalf and in behalf of the minor children, on March 31,1926, filed a petition in the succession proceedings alleging that the community property, which was owned- by herself and -her children in the proportion of an undivided one-half each, was about to be sold under executory process in the Pick suit pending in the civil district court; that she was unable to pay the mortgage debt, which was long past due; that she had an opportunity of negotiating a loan fo-r an amount sufficient to pay the whole sum due in the foreclosure suit, and that it was for the best interest of the minors that she be allowed to grant a mortgage for $750 on the said property; that the undertutor of the said minors had taken cognizance of the recommendations and representations and approved them; and that the court should dispense with calling a family meeting in -accordance with the provisions of Act No. 110 of 1920. The prayer was as follows: “Wherefore, the premises, annexed affidavit and consent considered, petitioner prays that the Court approve and homologate the recommendations set forth in the foregoing petition and that the Court order and authorize your petitioner in her capacity as natural tutrix of the minors, Solomon Signal, Jr.,' Albert Signal, Alma .Signal, Yera Signal and Otis Signal, to grant a mortgage on the property hereinabove described in the sum of Seven Hundred Fifty Dollars ($750.00), with eight per cent, 8% interest from date until paid, and to secure same with all usual security clauses. And that the Court further order that the general mortgage in favor of the minors herein be held ineffective, insofar as the mortgage she is authorized herein to make, and petitioner prays for such further order as the Court may deem proper.”

The undertutor acquiesced in the matter in the following language: “Having taken cognizance of the foregoing petition and being thoroughly conversant with the facts therein set forth, I join in the prayer thereof and ask that the mortgage as prayed for by the natural tutrix herein be ordered and authorized by the court.”

The district judge, based upon the recom-' mendations of the tutrix and undertutor, as contained in the petition, issued the following order:

“It is ordered by the Court that the recommendations of the natural tutrix and the concurrence thereto of the undertutor of the minors, be and the same 'are hereby approved and homologated; and, accordingly, let the petitioner, Mrs. Mary Lazard, widow of Solomon Signal, natural tutrix of the said minors be authorized and she be hereby empowered to mortgage the property owned by the minors herein and described in the foregoing petition, said mortgage to be in the sum of Seven Hundred Fifty Dollars ($750.00) and bearing eight per cent. 8% interest from date until paid, with all usual security clauses.

“And it is further ordered that the general mortgage in favor of the said minors, recorded in M. O. B. 1258 Folio 224 of the Parish of Orleans, be ineffective insofar as the mortgage herein being authorized by the court”

On April 7,1926, George R. Gumpert loaned the widow, individually and as natural tutrix of the minor children, and the major son, the sum of $750 under a conventional mortgage which purports to be in accordance with the recommendations of the tutrix and undertutor and the order of the judge; the mortgage containing the pact de non alienando, confession of judgment, and waiver of appraisement clauses, and being properly recorded. The money realized from this loan was used to liquidate the mortgage of Pick and other expenses and costs incidental thereto, and it was canceled from the mortgage records. The new mortgage was several years .past due, the mortgage creditor being compelled to pay the taxes assessed against the real estate,/when on October 25, 1932,- Mr. Gumpert instituted executory process, against the widow individually and 'as natural tutrix and the major son. The property was seized and adjudicated at. public sale to Mr. Gumpert for $100, which amount, together with all the costs and fees of the civil sheriff, have been paid to' him by the adjudicatee.

The general mortgage in favor of the minors appeared on the mortgage certificate, and the civil sheriff filed a rule against the recorder of mortgages and the minors through their natural tutrix to show cause why the general mortgage in favor of the minors should not be partially canceled and erased in so far as it affected the property in question and the minors’ . rights referred to the proceeds of the sale.

The attorney for the recorder of mortgages makes the following contentions: First, that the tutrix, undertutor, and district judge were without authority to waive the benefit of appraisement in granting the conventional mortgage in favor of Mr. Gumpert; second, that their attempt to subordinate and make the minors’ general mortgage inferior in rank to the conventional mortgage was hull and void; ^nd, third, that, if these representatives of the minors had the authority to partially cancel the minors’ mortgage, the tutrix, in granting the conventional mortgage in favor of Mr. Gumpert, went beyond the express authority of the recommendations of the tu-trix and undertutor and the order of the court

The first argument is clearly without merit. In the case of Martin v. Lake, 37 La. Ann. 763, the Supreme Court said: “Article 342 of the Civil Code, which prohibits the sale of a minor’s property for less than its appraised value mentioned in the inventory, applies only to sales provoked by his tutor, during the course of his administration, and not to sales under execution, either of judgments, or by executory process for the foreclosure of a mortgage executed by the tutor with the authorization of a competent court, under the advice of a family meeting.”

With reference to -the second point, it appears to be conceded that the widow had the right to mortgage her undivided one-half interest in the property, the major son his pro rata interest, and that the tutrix, under-tutor, and the district judge, as representatives of the minors, had the authority, under the articles of the Civil Code and Act No. 110 of 1920 and Act No. 319 of 1926, dealing with the tutorship of minors, to place a mortgage on the minors’ interest in the property without the necessity of convoking a family meeting. The complaint is not that the mortgage in favor of Mr. Gumpert was illegal, but that the purported act of giving it priority over the minors’ general mortgage on the widow’s undivided one-half interest in the community property was invalid because there are only two ways in which a minor’s general mortgage can be released — i. e., first, by substituting a special mortgage in accordance with article 326 et seq. of the Civil Code; and, second, by furnishing a tutor’s bond in accordance with Act No. 223 of 1920 (as amended).

The provisions of the Civil Code concerning tutorship of minors, i. e., article 246 et seq., designate the tutor, the undertutor, and the district judge as the persons having authority to represent minors. These parties authorized and confected the mortgage under which the plaintiff claims. It was through this means that the property, the modest home of the family, was saved from being sold in the year 1926 under the Pick mortgage, which certainly primed the minors’ general mortgage. To say that the tutrix, the undertutor, and the district judge did not have authority to place the mortgage in question on the property and give it priority over the minors’ mortgage, in view of the purpose for which it was made, would be to say that, under the law, they were powerless to help the minors and' had to permit Mr. Pick to foreclose and sell the property, although the law enjoins upon them the duty of protecting the minor’s interest as a prudent administrator.

It is difficult to -imagine that any one would have advanced the necessary funds under such circumstances on a mortgage secondary to the minors’. The transaction was entered into in good faith and for the obvious advantage and interest of the minors in a matter of absolute necessity. This is conclusively shown by virtue of the fact that the sheriff was about to sell the property under the ex-ecutory proceedings based- upon the Pick mortgage, and the loan from Mr. Gumpert saved the property from being sold and the family have had the use and benefit of the home from 1926 to the present time.

We believe that the articles of the Civil Code relating to tutorship of minors and Act No. 110 of 1920 'and Act No. 319 of 1926, vested the necessary authority in these representatives of the minors to do what they did.

The rights of the minors were in no way compromised or surrendered, as Gumpert’s mortgage was no more onerous than Pick’s; both containing the same clauses.

Our Supreme Court has recognized the right of the tutor, undertutor, and the district judge to subordinate the minor’s tacit mortgage to a conventional mortgage where it was to the evident advantage of the minors, or absolutely necessary in order to obtain a loan to protect the minor’s interest. Beauregard v. Leveau, 30 La. Ann. 302; Fontenette v. Veazey, 1 La. Ann. 236.

Did the tutrix, in granting the conventional mortgage in favor of Mr. Gumpert, go beyond the recommendations of the tutrix and under-tutor as contained in the petition and exceed the express authority contained in the order of the district judge? It is said that neither the petition nor the order of the court specifically authorized placing in the mortgage the paetde non alienando, confession of judgment, and waiver of appraisement clauses. It is true that the language of the petition and the order of the court do not refer to these clauses by name, but both the petition and order do set forth that the loan of $750 is to be secured by a mortgage containing “all usual security clauses.”

It seems to us that the clauses with reference to the pact de non alienando, confession of judgment, and waiver of appraisement are so generally used in conventional mortgages that the courts can take judicial notice of those three clauses as “usual security clauses.” This court and other courts, in fixing the quantum in damage suits for personal injuries, - have taken judicial notice of the fact that the purchasing power <?f money in- oreases and decreases from time to time, and this economic condition appears to be more uncertain than the definite and positive provisions of the three aforementioned clauses. But, even if we have no right to take judicial cognizance of these stipulations as the “usual security clauses” in mortgages, since the petition and the order of the court contain that phrase, it would seem reasonable that we should endeavor, from the record, to ascertain what was meant thereby, and not ignore it ' At the time the petition containing the recommendations was presented and the order signed granting authority to place a mortgage on the property for the purpose of saving it from being sold in the Pick proceedings, the tutrix, undertutor, and the district judge had before them the mortgage which Mr. Pick was foreclosing upon. This mortgage contained the pact de non alienando, confession of judgment, and waiver of appraisement clauses. Pick’s mortgage unquestionably had priority over the minors’ general mortgage, and, if the property had been sold in that proceeding, there is no doubt that the purchaser would have obtained a title free of the minors’ mortgage. That it was the intention and purpose of the parties to place G-umpert in the same position as Pick is inescapable. A reading of the records in the succession proceeding and the executory process matter instituted by Mr. Pick leads one to no other conclusion than that the tutrix, undertutor, and the district judge unquestionably) referred to these clauses. To say otherwise would be in effect striking from the petition and the order the language to the effect that the $750 was to be secured by “all the usual security clauses.”

In the case of Hand et al. v. Harper et al., 171 La. 47, 129 So. 664, 667, the Supreme Court stated the issue as follows:

“The grounds alleged for annulling the sale, so far as pressed, may be stated as follows:

“(1) That the sale made by plaintiffs’ tutor to defendant is null, because the family meeting did not recommend that plaintiffs’ interest be sold at private sale to effect a partition, but instead recommended that a private sale be made for the reason that it was shown that neither their father, nor they, nor their brother and sisters, were able to properly improve the said property -and pay the taxes on the same.”

In upholding the sale, the court said:

“The act contemplates that the property may be sold at private sale, when the family meeting so recommends, to effect a partition, and not when the purpose is to effect something else. The procSs verbal of the meeting does not expressly say that the sale is recommended to effect a partition. The question is therefore presented whether that document sufficiently discloses that the sale was recommended for the puipose of effecting a partition. We think that it does sufficiently so disclose. The family meeting was convoked for the single purpose of effecting a partition by private sale. Immediately after the oath was administered to the members of the meeting, and before they began their deliberations, the object of the meeting was explained to them by the notary. The meeting, as is necessary in such eases, made an appraisement, which is an act peculiar to partitions by private sale, and which shows that the meeting had in mind that the sale was to be made to effect a partition. The finding that the father of plaintiffs and his remaining children were unable to improve the property properly was only a reason given for recommending the sale, and was not a statement of the purpose to be accomplished by the sale. In our view, the sole purpose of recommending the sale, as disclosed by the proceedings, was to effect a partition, and that express mention of the puipose to effect one was inadvertently omitted by the notary from the procSs verbal-This ground of attack therefore should not prevail.”

See, also, Schrock et al. v. Bolding et al., 171 La. 929, 132 So. 504.

The authorities cited in our original opinion show that the tutor, in carrying out the order-of the judge, cannot go beyond the recommendations of the family meeting, and the order-of the court homologating them. In those cases the tutor , did something beyond the authority vested in him by the recommendations of the family meeting and the order of the court approving them. The recommendations of the family meeting and the order of the-court were silent as to the specific act complained of that the tutor performed in excess, of the.authorization granted. This was not only true in the eases cited in the original-opinion, but ffiso in the case of Fradella et al. v. Pumilia et al., 177 La. 47, 147 So. 496. In the instant case, however, this situation does not obtain, for the recommendations of the tu-trix, concurred in by the undertutor and authorized by the district judge, expressly state-that the new loan was to be secured by a mortgage containing “all usual security clauses” and that the minors’ mortgage, which was specifically referred to, would be “ineffective in so far as the mortgage herein being authorized by the court” (was concerned). In short, the tutrix carried out the order of the district-judge and did not disobey it.

In -any event if we have no right to take judicial eo-gnizance of what the words -“usual security clauses” in conventional mortgages mean, and we further have no right to interpret the phrase in the light of all of the facts contained in the record, then it is certainly clear that, in the interest of justice, the plaintiff was entitled to have the ease remanded for the purpose of receiving additional evidence to determine what was intended by the - language “all usual security clauses.” The plaintiff loaned his money in good faith for the purpose of preventing the sale of the mi nors’ property, and should not be defeated in his right to recover his money because his attorney failed to offer evidence tending to show what “all usual security clauses” in conventional mortgages were, and depended upon the court taking judicial cognizance thereof, or interpreting that clause in the light of the facts contained in the record. But we do not consider it necessary to remand the case, because we feel confident, first, that we have the right to take judicial cognizance of the fact that the pact de non alienando, confession of judgment, and waiver of appraisement stipulations are “usual security clauses” in conventional mortgages; and, secondly, that the record shows that those clauses were intended by the language of the petition and the order of the court authorizing the confecting of the Gumpert mortgage.

For the reasons assigned it is ordered, adjudged, and decreed that our original opinion and decree be annulled, avoided, and reversed, and it is further ordered that the judgment of the district court be reinstated and affirmed land made the final judgment of this court.

Original decree recalled; judgment of district court reinstated and affirmed.