Heirs of Wilder v. Petty

21 La. Ann. 709

• Court: Supreme Court of Louisiana
• Decided: November 15, 1869
• Docket: No. 1810
• Status: Published

Opinion

Howe, J.

The plaintiffs sued the defendant for the ■ partition of

certain real property held hy them in common. Judgment was rendered that the property he divided in Rind, and a partition was accordingly made before a notary, and as the defendant drew the more valuable portion, lie paid to plaintiffs, in cash, a sum sufficient to equalise the shares, and an act was duly signed and homologated.

A mortgage, rested on the Whole property in favor of the Citizens’ Bank to secure a note given for a loan, and renewable, according to the charter, upon stock of the bank. ■ It seems that the hank consented that this debt should he divided; and, upon her own motion, the tutrix (Obtained permission to sign the necessary stock note. Pot some reason, which is not apparent., she afterwards declined to sign the acts necessary to divide the debt, and the defendant, Petty, took a rule to compel the signature. The rule was made absolute, and tile plaintiff in the suit appealed.

Upon the trial ot the rule tire -plaintiffs, defendants on rule, reserved a hill of exceptions to the exclusion by tbe judge of testimony offered by them in reference to the condition of the partnership which had existed, between the decedent, Wilder, and the defendant, Petty, of which Petty was liquidator. The j'udge did not err in this ruling, as the property partitioned did not appear to form any part of the partnership assets.

Nor do we perceive any error in the judgment on the merits of the rule. The division of the encumbrance appears to he, in this case,’ at least, a natural and just sequel to the partition in kind, prbvoked hy the appellants themselves, and necessary to complete it in such manner as to fully secure the rights of the minors as well as those of the defendant.

It is therefore ordered that the judgment appealed from he affirmed with costs.