In re the Tutorship of Hacket

4 Rob. 290

Opinion

Morphy, J.

Two points have been made, which, as they apply only to the intervening party, we will first consider. It is said, that Elvira Hacket was improperly permitted to intervene in this suit, as her demand is a separate and independent one ; that she does not claim the same thing as Francis Hacket or any thing connected with it; that she claims for herself the same sum of money, to be sure, as he does, but that there is not, between the two demands, that identity, or connection, contemplated by article 389 of the Code of Practice. We. think otherwise. Elvira Hacket seeks to join her brother and co-heir, in order to demand from the same person a legal settlement of their common father’s estate. The thing which both claim is the same, and the grounds on which it is claimed are the same. Having a similar cause of action, and claiming in the same right, nothing could have prevented her from joining in the action when originally brought; if so, why should she not be permitted to unite her efforts to those of her co-heir, in the prosecution of their common claims against the plaintiff? We can see no good reason why it should not be so, and we believe that this case is precisely one of those provided for by the Code of Practice, Arts. 389, 390.

It is next urged, that Elvira Hacket is estopped from setting up the same claims as her co-heir, because, in 1839, she accepted her tutor’s account after becoming of age, and gave him a full receipt and discharge for all claims she had against him, as well as against the estate of James Hacket her former tutor; and that by so doing she has ratified the adjudication made to James Hacket, in 1832. To this the interpleader answers, that these receipts and acquittances were the result of error on her part, created by the false representations and assertions made to her by her tutor, in the very account she accepted. We are not generally disposed to listen to parties who seek to annul contracts, deliberately entered into, on the score of error, except in cases where such error is clearly made to appear. The account rendered in 1839, states the sum of $2528 59, as being that coming to Elvira from the estate of her father and mother, and refers for its correctness to a settlement and liquidation of their estates, which, it is averred, had been made in the Court of Probates by James Hacket, her former tutor, on the 20lh January, 1832. It appears that no such settlement of these estates has ever taken place ; nor has any attempt been made to show, on what basis this account was rested. If its correctness cannot be supported by the archives of the Court of Probates to which it refers, and if, on the supposed truth of such reference, it was accepted by the interpleader, it is clear that she was deceived, and acted in error. She must have supposed that the settlement and liquidation spoken of, had been made contradictorily with her under-tutor, more experienced than herself, and whose duty it was to see her rights properly stated, and correctly adjusted. She was a minor at the time of the adjudication made to James Hacket; and nothing in the evidence induces the suspicion, that when she signed the account she had the least knowledge of her rights to any part of the property thus adjudicated, and intended to abandon them. On the contrary; all the circumstances of the case fully satisfy us, that she acted throughout in entire ignorance of her rights, and that she should not be concluded by the acquittance and discharge thus unadvisedly signed, especially when they are opposed to her by the very party who led her into error. Civil Code, arts. 1815, 1841. 10 Peters’ Rep. 735. It is not pretended that she is not within the four years during which a minor, after arriving at the age of majority, can institute a direct action against his tutor respecting the acts of the tutorship ; and it may be added, that the settlement or receipt relied on are not, perhaps, in such strict accordance with the requirements of law, as to be binding on her. Civil Code, arts. 355, 356.

Before answering to the merits, the petitioner excepted to the reconventional demand and intervention set up by the heirs of Francis Hacket; on the ground, that a judgment allowing their claims would in substance be a judgment against the heirs and representatives of James Hacket, when they have not been made parties to this suit; and moreover, that the Court of Probates would be made to try questions of title between the children of the two marriages, when it is without jurisdiction to try such issues. The judge below rightfully overruled these exceptions. The plaintiff is now rendering an account to the children of Francis Hacket, not only of his own tutorship, but also of ihe tutorship of James Hacket, their former tutor, whose minor heirs he represents ; they are therefore in court, and their rights are defended by the person alone authorized by law to stand in judgment for them. As to the question of title, it must necessarily be decided by the inferior court, which is called upon to determine what proportion of the funds, in the hands of the petitioner, is coming to the children of the first marriage, and what claims the latter have against their former tutor, James Hacket, for the property they had in his possession, or of which, they alleged he attempted to divest them, by causing it to be adjudicated to himself. We have uniformly held that the Court of Probates can try questions of title, when they arise collaterally in the determination of other matters within its jurisdiction. 5 Mart. N. S. 214. 6 Ib. N. S. 304. 8 La. 463 ; and see case of Babin v. Nolan, just decided, ante, p. 278.

On the merits, the oral and documentary evidence in the record fully establishes, that the land and slaves, the proceeds of which are claimed by the heirs of Francis Hacket, belonged to their father before his marriage with Maria Adams. In relation to the land of 410 arpens, it has been shotjgn that, instead of the price of $7500, mentioned in the sale of the 21st of June, 1824, as having been paid, in cash, to Michael Adams by James Hacket and his wife, the only consideration obtained was the return of a note of the vendor for $6000, which he had executed to Francis Hacket, when the latter sold him the same land on the 16th of July, 1817; that Adams never made the cash payment of $1000 mentioned in this last sale, and never took possession of the land, which always remained in the occupancy of Francis Hacket, between whom, and Adams, there was an understanding, that the land should be re-conveyed whenever Hacket should require it ; that after the death of the latter, in order to free himself from the liability he was seemingly under, Michael Adams reconveyed the land to Maria Hacket and James Hacket, and received back his note of $6000, inventoried as due to Placket’s estate, believing, as the witness says, that thereby the legal title to the land would be reinvested in the heirs of Francis Placket. But these facts have been stated by Michael Adams himself, whose testimony, taken under a commission, was objected to ; and the bill of exceptions taken to the opinion of the court admitting it, presents one of the difficulties of the case. We believe, however, that the judge did not err. It is said that Francis Hacket, the father of Francis and Elvira Hacket, having been a party to the sale of 1817, they cannot, any more than he could, prove its simulation without producing a counter letter. If one was taken by their father, as the evidence renders probable, it must have fallen into the hands of James Hacket their tutor and step-father, the very person who, they allege, attempted to defraud them of their property by taking a sale of it in his own name in 1824, when a reinvestiture of the title in them, as heirs of Francis Hacket, was intended by the vendor. Under such circumstances, perhaps, they should be viewed in the light of third parties, and be permitted to prove the simulation by parol, especially ; when the witness offered is the other party to the sale, in a contest with whom they could prove the simulation by propounding to him interrogatories to be answered under oath. But be this as it may, the appellees were not parties to the sale of the 21st of June, 1824. The general rule certainly is, that written titles form full and conclusive proof between the parties, and that they are estopped from contradicting them ; but the exception is equally certain, that persons not parties to an act, may prove its simulation by parol, or may prove, as in the present case, that the act, although purporting to be a sale, was in truth a dation era payement, made for the benefit of such- third persons, and the exception holds especially where fraud is alleged. De la Houssaye v. De la Houssaye et al., 7 Mart. N. S. 203. Prudence v. Bermodi and others, 1 La. 240. Badon v. Badon, 6 La. 258. McCarty v. Bond’s Administrator, 9 La. 356. If by the re-sale executed by Adams, this land was really given in payment to the heirs of Francis Hacket, for a debt due to their father, they have, we apprehend, the same right of ratifying the transaction by claiming the land, as minors, who on arriving to the age of majority, can ratify sales made of their property, by claiming the proceeds. 6 Mart. N. S. 21. 2 Ib. N. S. 614.

Another bill of exceptions was taken to the admission of a witness to prove that J ames Hacket told him that he had sold the negro girl Lise for $500 or $600. The judge did not err. The testimony does not go to make out a sale or transfer of a slave, or affect the title to one, but to prove the receipt of a sum of money by James Hacket, for property disposed of by him, and for which he must account.

In relation to the family proceedings had in 1832, and those under which all the property found in the estate of James Hacket was sold, it is clear, that the rights of the appellees to the separate property of their father remained unaffected by them. On neither occasion were they made parties to the proceedings, which were exclusively conducted on behalf, and for the use of the minors of the second marriage. But although the heirs of Francis Hacket are not bound by such proceedings, they have the undoubted right of ratifying the sale thus made of their property, and of claiming its proceeds. 2 Mart. N. S. 614. 5 Ib. N. S. 625. 2 La. 519.

The manner in which the Probate Judge has settled the rights and claims of the appellees, appears to us substantially correct: but he has, we think, improperly allowed them interest, at the rate of ten per cent per annum, from the maturity of the several instalments of the price their land sold for. The tutor is certainly accountable for whatever he receives for his minor, both capital and interest; but from the moment the funds reach his hands, he is not chargeable with more than five per cent per annum. Acts of 1825, p. 198. None of the children of the slave Betsey fell into the community, as contended by the appellant’s counsel. From their ages as shown by the record, Lise, one of them, was born before the marriage of Francis Hacket, and the two others, Arthemise and Nathan, after his death.

It is therefore ordered, that the judgment of the Court of Probates be so amended, as to allow the appellees only five per cent per annum interest, instead of ten, on the sums, and from the periods, therein mentioned; and that it be affirmed in all other respects ; the appellees to pay the costs of this appeal.