The opinion of the Court was delivered by
Bermudez, C. J.
The question presented is: Whether the adjudicatee of certain property belonging to this succession shall be ■compelled to comply with his bid.
The ground of resistance is, that the proceeding by which the order of sale was obtained and the order itself are unwarranted, and, as such, null, and that, therefore, no title has passed to the adjudicatee.
Mrs. Dumestre died leaving minor and major heirs and owning property inventoried at $24,000. She was indebted to third parties in about $6000, and, it is alleged, to her major heirs some $4000.
A dative tutor was appointed to the minor children and he was relieved from furnishing security.
He undertook the settlement of the succession and, to that end, doing that which an administrator could have done and even more, he presented a petition alleging the debts and that, for the purpose of paying them and settling with the major heirs, the whole or part of the property ought to be sold.
-A family meeting was called and fixed the terms of the sale, and the heirs of age assented.
JBy the same order, the deliberations were homologated and the entire property was ordered to be sold.
It was offered and realized $21,746, part being withdrawn.
It is apparent, from this condition of things, that the sale was asked either exclusively to pay debts, or also to effect a partition.
[573]*573If it was to pay debts aggregating at most $10,000, there was no necessity, no propriety, no authority, to order the sale of $24,000 worth of property, and the order must be deemed ultra vires of the court.
If the sale was ordered to effect a partition, besides, the forms of' law have not been observed and the'order is likewise a nullity.
So that, in either case, the order of sale was- unwarranted and the execution of it has not stripped the minors of their undivided share therein, Forcing the adjudicatee to comply with her bid is to compel her to give her money for property to which a voidable or doubtful title is tendered.
The safest test for the validity of the sale is to ascertain the precise nature or character of the proceedings which provoked it.
They were designed either to obtain the sale of the succession property to pay the debts, or to effect a partition, or the sale of minor’s-property as an act of tutorship.
If intended to pay debts, they must be controlled by the law and the jurisprudence on that subject, and could ignore the heirs.
If intended to operate a- partition, they should be conducted under the provisions of the code in that respect.
If intended to accomplish a sale of minor’s property, and only in that case, the should comply with’provisions Arts. 339 et seg., R. C. C..
(a) Tested by the fundamental allegation of the petition, which is-that the sale was necessary to pay the debts of the succession, the conclusion is warranted that the object in view was to pay debts, by the tutor administering the succession. In such case, the sale could not be sustained, as they were two heirs of age, and the tutor could not control the succession as an entity ,• for it is well established, that a tutor can ex-ofieio administer a succession only where it accrues exclusively to his wards.
(b) If the proceedings are to be treated as .contemplating a partition, it is apparent that the minors, for whom the law accepts a-succession under benefit of inventory, had then no standing, for the plain reason, that the succession was not liquidated, was burdened with debts,- and the property could.be the object of a partition only after such liquidation had been effected.
(c) If the tutor proposed to make a sale under Arts. 339 et seg.,-R.. C. C., he is denied that right, as the minors were not then the sole or exclusive owners of the property, to which they had only an undivided share, the value of which could not be ascertained before a [574]*574complete administration and liquidation of the succession. Richard vs. Denee, 11 R. 518.
It will not do to say that a purchaser has no right to look beyond the decree ordering the sale, when it is rendered by a competent court, for it is settled that he must look not only to the jurisdiction of the court, but also inquire into the power of the court to make the order of sale.
When he discovers, on the face of the proceedings, at least those conducive to the sale and which serve as a foundation for the order of sale, illegalities calculated to throw a cloud on the title tendered, he may successfully refuse compliance with the adjudication.
If he were to be held protected by the mere order, then he could be forced to take title to the property of minors, ordered to be sold without the consent of a family meeting, or without any previous appraisement, or without any reason being assigned to justify the sale. R. C. C. 340.
Surely such is not the law.
There is no precedent to show that a purchaser ever was compelled to take a title under such circumstances.
In the case of the Succession of Gassen vs. Palfrey, 9 Ann. 560, in which a purchaser had refused to comply and was relieved, the Court substantially said:
There is yet for him a locus pcenitentia and the presumption omne rite aeta, etc., created for his protection, cannot estop him, though it be available to throw on him the burden of proof. He can always successfully resist, when the title tendered is, if not void, at least voidable.
In the case of McCulloch vs. Holmes, N. R., No. 4672, decided in 1857, O. B. 27, fol. 240, and alluded to in McCulloch vs. Weaver, 14 Ann. 33, in which the Court had ordered the sale of property belonging to minor and major heirs on an ex parte proceeding and without a formal judgment of partition, a purchaser was relieved from compliance with his bid on property at the sale.
It is true that there were exceptions in the case which had not been disposed of before the order of sale had been rendered.
In the case in 14 Ann. 33, just mentioned, an adjudicatee, at the same sale, under the same order, was quieted in a suit brought by the administrator to annul the sale, and this because he had gone into possession and his title could be subsequently ratified.
In the present case, the adjudicatee is not attacking the order of sale collaterally. He charges its nullity on its face, because the petition [575]*575and the deliberations of the family meeting, which form part of it expressly, do not justify the order. His objections are founded on the proceedings on their face.
The court, no doubt, had jurisdiction over the succession and over the minors. It had authority to order the sale of part of the property to pay the debts, but it had none to order the sale of the entire property, as it did.
Property sufficient to pay the debts, even what is said to be due the major heirs, ought to have been first
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the Court was delivered by
Bermudez, C. J.
The question presented is: Whether the adjudicatee of certain property belonging to this succession shall be ■compelled to comply with his bid.
The ground of resistance is, that the proceeding by which the order of sale was obtained and the order itself are unwarranted, and, as such, null, and that, therefore, no title has passed to the adjudicatee.
Mrs. Dumestre died leaving minor and major heirs and owning property inventoried at $24,000. She was indebted to third parties in about $6000, and, it is alleged, to her major heirs some $4000.
A dative tutor was appointed to the minor children and he was relieved from furnishing security.
He undertook the settlement of the succession and, to that end, doing that which an administrator could have done and even more, he presented a petition alleging the debts and that, for the purpose of paying them and settling with the major heirs, the whole or part of the property ought to be sold.
-A family meeting was called and fixed the terms of the sale, and the heirs of age assented.
JBy the same order, the deliberations were homologated and the entire property was ordered to be sold.
It was offered and realized $21,746, part being withdrawn.
It is apparent, from this condition of things, that the sale was asked either exclusively to pay debts, or also to effect a partition.
[573]*573If it was to pay debts aggregating at most $10,000, there was no necessity, no propriety, no authority, to order the sale of $24,000 worth of property, and the order must be deemed ultra vires of the court.
If the sale was ordered to effect a partition, besides, the forms of' law have not been observed and the'order is likewise a nullity.
So that, in either case, the order of sale was- unwarranted and the execution of it has not stripped the minors of their undivided share therein, Forcing the adjudicatee to comply with her bid is to compel her to give her money for property to which a voidable or doubtful title is tendered.
The safest test for the validity of the sale is to ascertain the precise nature or character of the proceedings which provoked it.
They were designed either to obtain the sale of the succession property to pay the debts, or to effect a partition, or the sale of minor’s-property as an act of tutorship.
If intended to pay debts, they must be controlled by the law and the jurisprudence on that subject, and could ignore the heirs.
If intended to operate a- partition, they should be conducted under the provisions of the code in that respect.
If intended to accomplish a sale of minor’s property, and only in that case, the should comply with’provisions Arts. 339 et seg., R. C. C..
(a) Tested by the fundamental allegation of the petition, which is-that the sale was necessary to pay the debts of the succession, the conclusion is warranted that the object in view was to pay debts, by the tutor administering the succession. In such case, the sale could not be sustained, as they were two heirs of age, and the tutor could not control the succession as an entity ,• for it is well established, that a tutor can ex-ofieio administer a succession only where it accrues exclusively to his wards.
(b) If the proceedings are to be treated as .contemplating a partition, it is apparent that the minors, for whom the law accepts a-succession under benefit of inventory, had then no standing, for the plain reason, that the succession was not liquidated, was burdened with debts,- and the property could.be the object of a partition only after such liquidation had been effected.
(c) If the tutor proposed to make a sale under Arts. 339 et seg.,-R.. C. C., he is denied that right, as the minors were not then the sole or exclusive owners of the property, to which they had only an undivided share, the value of which could not be ascertained before a [574]*574complete administration and liquidation of the succession. Richard vs. Denee, 11 R. 518.
It will not do to say that a purchaser has no right to look beyond the decree ordering the sale, when it is rendered by a competent court, for it is settled that he must look not only to the jurisdiction of the court, but also inquire into the power of the court to make the order of sale.
When he discovers, on the face of the proceedings, at least those conducive to the sale and which serve as a foundation for the order of sale, illegalities calculated to throw a cloud on the title tendered, he may successfully refuse compliance with the adjudication.
If he were to be held protected by the mere order, then he could be forced to take title to the property of minors, ordered to be sold without the consent of a family meeting, or without any previous appraisement, or without any reason being assigned to justify the sale. R. C. C. 340.
Surely such is not the law.
There is no precedent to show that a purchaser ever was compelled to take a title under such circumstances.
In the case of the Succession of Gassen vs. Palfrey, 9 Ann. 560, in which a purchaser had refused to comply and was relieved, the Court substantially said:
There is yet for him a locus pcenitentia and the presumption omne rite aeta, etc., created for his protection, cannot estop him, though it be available to throw on him the burden of proof. He can always successfully resist, when the title tendered is, if not void, at least voidable.
In the case of McCulloch vs. Holmes, N. R., No. 4672, decided in 1857, O. B. 27, fol. 240, and alluded to in McCulloch vs. Weaver, 14 Ann. 33, in which the Court had ordered the sale of property belonging to minor and major heirs on an ex parte proceeding and without a formal judgment of partition, a purchaser was relieved from compliance with his bid on property at the sale.
It is true that there were exceptions in the case which had not been disposed of before the order of sale had been rendered.
In the case in 14 Ann. 33, just mentioned, an adjudicatee, at the same sale, under the same order, was quieted in a suit brought by the administrator to annul the sale, and this because he had gone into possession and his title could be subsequently ratified.
In the present case, the adjudicatee is not attacking the order of sale collaterally. He charges its nullity on its face, because the petition [575]*575and the deliberations of the family meeting, which form part of it expressly, do not justify the order. His objections are founded on the proceedings on their face.
The court, no doubt, had jurisdiction over the succession and over the minors. It had authority to order the sale of part of the property to pay the debts, but it had none to order the sale of the entire property, as it did.
Property sufficient to pay the debts, even what is said to be due the major heirs, ought to have been first ordered to be sold, and this once done, the rest of the property would have remained unincumbered, the common property of the heirs, who, if unwilling to hold in indivisión, might then have asked a partition, either in kind or by lieitatión.
Before ordering a sale of property held in common by minors with majors, the Court must be satisfied, either by the reports of experts, or by satisfactory evidence, that the property cannot be divided in kind, for it is the policy of the law, in its jealousy for the protection of minors, that they should rather own real estate than that they should have money or securities, which would be by their nature more imperilled than if invested in such property.
There is nothing to show, in these proceedings, not even an obligation, either in the petition or in the proces verbal of the deliberations of the family meeting, that the property cannot be divided in kind, conveniently, among the heirs.
It is well observed by the judicious counsel for the resisting purchaser: “ If the method pursued^ in this case be legal, all the safeguards thrown around the interest of minors by the forms prescribed are utterly useless.”
The proceedings leading to the order of sale have none of the features of a partition, although it was one in disguise, intended to operate as such; but even if it was regular in its form, the absence of proof of the impossibility of convenient division in kind would not have justified the judgment of sale.
Under the circumstances, the purchaser cannot be compelled to take the title offered.
The adjudicatee has prayed that the amount deposited by her with auctioneer be returned to her. She is clearly entitled to have it back.
It is therefore ordered and decreed that the judgment appealed from be reversed, and it is now ordered and decreed that the rule herein taken to compel compliance with the adjudication be discharged [576]*576and that the defendant therein recover the amount deposited by her with the auctioneer, namely: Six hundred and twenty-two dollars, and fifty cents ($622.50) and costs in both courts.
Rehearing refused.