Morris v. Harrell

14 La. Ann. 185

• Court: Supreme Court of Louisiana
• Decided: March 15, 1859
• Status: Published

Opinion

Land, J.

The property of the succession of Abram II. Morris, deceased, was sold to effect a partition between his heirs, the plaintiff, a married woman, and two minors represented by the defendant.

After deducting the sum of $817 42, claimed by the widow in community as her separate property, and the sum of $974 75 for the purpose of paying debts, the balance of the proceeds of the sale was divided in equal parts between the plaintiff and her co-minor heirs.

The plaintiff, authorized by her husband, filed an opposition to the homologation of the partition, on various grounds.

The defendants filed a motion to dismiss the opposition, on several grounds, one of which was, that the opponent had agreed absolutely to said partition, and had ratified the same by her acts.

The act of partition is found in the record, is signed by the opponent, and contains the following clause:

“ The parties being all present, consenting and agreeing that the above and foregoing partition shall be and remain firm, binding and irrevocable, on each and every one of said heirs, to the end and for the purpose specified in the order of the court, ordering the same.”

The opponent offered no testimony to prove the allegations made in her opposition, and the Judge sustained the motion to dismiss.

The motion was not in the nature of an exception, which admits the allegations contained in the petition, and therefore did not dispense with proof on the part of the opponent.

The motion was in the nature of a rule to show Cause, and put at issue tlie: merits of the opposition.

The agreement in the act of partition, that the same should remain irrevocable» in the absence of all proof of error or fraud, was sufficient to authorize the judgment of dismissal.

It is, therefore, ordered, adjudged and decreed, that the judgment be.- affirmed,,, with costs in both courts.