McKnight v. Calhoun

36 La. Ann. 408

• Court: Supreme Court of Louisiana
• Decided: April 15, 1884
• Docket: No. 9129
• Status: Published

Opinions

The opinion of the Court was delivered by

MANNING, J.

Meredith and Mary S. Calhoun were husband and wife. Their two children William and Ada are the defendants. Meredith Calhoun died 1869, and his son became administrator of his estate and continued so until 1882, during which year he was destituted and the plaintiff McKnight was appointed. Mrs. Calhoun had died in 3871, and the children, both majors, had accepted her succession unconditionally and were put in possession thereof.

In January 1883 McKnight, as administrator of Meredith Calhoun, brought this suit to recover the amount of certain debts which it is alleged the mother of the defendants owed at the time of marriage, and which had been paid by Meredith her husband during the community ; for improvements made on her lands by him during the same time; and rents of his lands alleged to have been collected by the defendant Mrs. Lane from 1873 to 1881.

Prescription was pleaded and sustained, and the plaintiff appealed.

If Mrs. Calhoun was thus indebted to her husband’s succession, the obligation was personal and subject to the prescription of ten years. The right of action accrued at the death of her husband in 1869, but prescription was suspended as long as William Calhoun was administrator of the creditor succession. No one could sue for the recovery of the claim but the administrator of that succession. He might have sued in the brief interval between 1869 and 1871, but when his mother died he became eo instanti one of her heirs, and by his unconditional acceptance of her succession stood in her place. Thereafter he must have sued himself if suit wore instituted. As administrator of his father he would have sued himself individually — his'individual liability accruing by virtue of his heirship of his mother.

The law neither authorizes nor countenances a proceeding so anomalous. Prescription having been thus suspended during the continuance of his administration, the suit was instituted almost immediately after its termination.

If prescription could not run in favor of William Calhoun' for the above reason, neither can it run in favor of his sister. If he had, as administrator of Ms father, sued Ms sister who is with him co-heir of his mother, for this alleged indebtedness, his allegations would he tantamount to a confession of judgment against himself. Because if Ms sister as his co-heir owes as he must have alleged her to owe, then he owed also in the same way and for the same reason and for the same sum. Every averment that he must have made to set out a cause of action against her would tell equally against himself, and the language he would have used to charge her indebtedness would charge his own indebtedness also. If then he cannot be required as administrator to sue himself, neither can he be required to sue his sister on a liability that he shares with her, and if the one cause suspends prescription so does the other.

The creditors could not have compelled the administrator to sue. His exception to a proceeding by mandamus would have been that if his sister was liable so was he, and that he could not by judicial process be forced into the position of plaintiff and defendant in the same suit at the same time.

Besides, this is not a claim that could have come to .the knowledge of creditors. It was not likely to be a.n inventoried asset of the succession, and could not be in the circumstances of this case. It was not a debt that, like a note for instance, was itself' evidence o.f its existence. It is a claim alleged to arise out of the acts of parties that created a legal liability, the existence of which could be known only to those who had access to the private papers of the deceased, like the administrator, or who knew from other sources what was the history of the property.

But if the creditors had the means of knowing the existence of this debt, the administrator would have answered the compulsory proceeding against him by denying that any obligation of the kind set out by the creditors had ever rested upon his mother, or upon his sister as one of the heirs, and this issue would have involved and necessitated the trial of the whole case in the mandamus proceeding. His personal interest to defeat the suit would conflict throughout with his dutjr as plaintiff, for it is quite impossible to have separated his own interest from his sister’s, and though she would nave been the only nominal defendant, Ms interests would be so inextricably bound up with hers that he would be a real defendant as much as she was. So that we get back at last to the substantial reason why he could not be compelled to sue his sister, i. e. he would virtually be suing himself.

If prescription was not suspended under those circumstances, the creditors would be remediless and must stand conscious but silent witnesses of that lapse of time, which was gradually taking from them their redress without-the power to arrest its progress.

The claim against Mrs. Lane for rents of Meredith Calhoun’s lands received by her without any alleged opposition from his administrator cannot he regarded as an action ox delicto. She may reasonably be presumed to have received them under some color of right, and her position would be more likened to a negotiorum gestor than to a wrongdoer. The prescription of one year is not therefore applicable thereto, but that of ten years, which had not expired.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, the plea of prescription is overruled, and the cause is remanded to be proceeded with according to law, the defendants and appellees paying costs of appeal.