Levy v. Robson

36 So. 472, 112 La. 398, 1904 La. LEXIS 404

Opinion

PROVOSTY, J.

Plaintiffs sue for their undivided half of certain community property (a cotton plantation) which their father mortgaged after the death of their mother, and which, at the foreclosure sale under the mortgage thus given, was adjudicated to the persons from whom defendant acquired.

The defenses are that the mortgage was given before the death of the mother of plaintiffs, or, if not before the death of the mother of plaintiffs, at any rate for a debt of the community, and that, moreover, the community was insolvent, and the price of the property went to pay its debts, and that, as a consequence, the property cannot be recovered back.

The record shows that the mortgage was given after the death of the mother of plaintiffs, and the testimony did not satisfy the judge a quo, and does not satisfy us, that it was given for a debt of the community. As to the defense of the insolvency of the community, it is well settled that in a suit, like the present one, for the recovery of the property of the community alienated by the survivor in community, the question of the solvency or insolvency of the community cannot be inquired into. Murphy’s Heirs v. Jurey, 39 La. Ann. 785, 2 South. 575.

Plaintiffs complain that the amount allowed by the lower court is excessive, and should be reduced. We have concluded not to disturb the finding of the lower court, though we must admit the amount does appear to us to be rather large.

Judgment affirmed.

LAND, J., recused, having presided in the court below.