Succession of Foulkes

11 La. Ann. 593

Opinions

Buchanan, J.

The mover-in this rule

* represents, as tutor, certain minors, who are creditors, with general mortgage, for a large amount of the estate of George Foulkes. At a probate sale of the property belonging to said estate, the mover in the rule bid off certain immovable property in the name of his wards, and it is now objected that he was not authorized by the Judge, on the advice of a family meeting, to make said purchase. In the case of Davis v. Leaumont, 5 Rob. 286, it was held sufficient in law that the family meeting ratified the purchase after it was made. Again, in McCarty v. Steam Cotton Press Company, 5 La. 21, Judge Porter, as the organ of the court, used this language: “But it is said that the approbation of the Judge of probates followed, and it should have preceded, the sale. The law does not specify at what time it is to be given, and we think that when the alienation takes place by auction, where the price cannot be known before the object is stricken off, the approbation of the Judge can alone be usefully and legally given after the sale.” See also 2 An. 729: 4 An. 85; C. C. 1788.

The terms of the probate sale were one-third cash and the balance at one and two years’ credit, for notes bearing mortgage and interest from date. The amount of the tutor’s bid was $5000, and the administratrix of George Foulkes required of the tutor, by notice in writing, and through a Notary Public, a compliance with the terms of sale, by giving the cash and notes. Upon his failure to comply, the formalities nquired in case of a folie enchére, by Art. 2589 of the Code were followed, and the property was offered for sale a second time, and adjudicated to Dr. Puissan for $8250. The validity of the second sale necessarily depends upon the obligation of the tutor of John Foulkes1 minor children, to give cash and notes to the amount of the bid made for their account. But it is Pla’n, be was under no such obligation. The minors whom he represented were creditors, with mortgage, of the estate of George Foulkes, who had been their tutor, and had died without rendering an account of tutorship. The amount of their claim against George Foulkes' estate was liquidated at the sum of $6056, by a judgment rendered after the probate sale; but the administra-trix of George Foulkes had acknowledged, in an inventory made six months previous to that probate sale, that the estate of her deceased husband was indebted to the minors in a larger sum than the amount of their bid, to wit: in the sum of $5883 40. Now the law is well settled since the case of Goodale v. Creditors, 8 L. 302, that a mortgage creditor who purchases, at a judicial sale, property subject to his mortgage, may retain the price of adjudication in satisfaction of his claim, except so far as it exceeds the amount of his mortgage. The syndic or administrator can only require of him security to refund or meet such charge as may be afterwards legally ordered. In the present case, the administratrix was without right to require of the tutor of the minors Foulkes the whole amount of the bid, as she -has done, and her subsequent acts gave no right to Dr. Puissan to the prejudice of those minors.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, that the cause be remanded, with instructions to convene a family meeting of the minor children of John Foulkes, in order to deliberate upon the propriety of ratifying the purchase made for the said minors by Robert Howes, their tutor, of a certain tract of land belonging to the succession of George Foullces, at a public sale, on the 29 th March, 1854, as shown by the proces verbal of Joseph A. Beard, auctioneer, on file in this case; that on such ratification being filed, this rule be made absolute, and the administration of George Foulkes be ordered to make a conveyance to the minor children of John Foulkes, represented by their tutor, Robert Howes, of the property mentioned in the rule, the firm to be credited upon the judgment obtained by said minors against the succession of George Foulkes, and that appellees pay costs of the rule in both courts.

On motion of Durant & Hornor, attorneys for Robert Hozoes, tutor of the minor children of John Foulkes, and on showing to the court that, on or about 'he 29th March, 1854, he bought, as tutor, at public sale, under an order of court, made by Beard & May, Auctioneers, a certain tract of land, belonging to the succession of George Foulkes, situated in this parish, right bank of the Mississippi river, about four miles below the city, measuring two arpents front on the Mississippi by forty arpents d.-ep, for the price of five thousand dollars; and on further showing that lie is a creditor of this succession, in the sum of six thousand and fifiy-six dollars, with Interest from 8th December, iu55. and legal mortgage from 2<ith December, 1848; and that he desires to retain the price of the property in part, and satisfaction of the aforesaid judgment.

It is, therefore, now ordered by the court, that Johanna Foulkes, administratrix of this succession, do show cause, oti Saturday next, the 18th day of January, 1855, at 10 o’clock, a. m., why she should not perfect the said sale and transfer, by authentic act, to promovent the fcitle to said property, and that Dr. F. R. JPuissan be made a party to this rule.