Succession of Rice

15 La. Ann. 649

• Court: Supreme Court of Louisiana
• Decided: December 15, 1860
• Status: Published

Opinions

Duffel, J.

The Bank of Orleans obtained, against John Rice, in the Commercial Court of New Orleans, judgment on the 11th December, 1840, for $2,802, with five per cent, interest from the 13th of May, 1840, four dollars costs of protest, and the costs of suit.

A writ of fi. fa. issued on the 28 th of December, 1840, and an alias on the 14th of November, 1842 ; the return on each was “no property found after legal demand from the parties.”

The pbove judgment was based on a protested note of James M. G. Cuddy, endorsed by Dr. John Rice, the payee, for $2,802, and the note was withdrawn, as also the protest, on the 3d September, 184T, by C. A. Morin, commissioner. A. Morin, W. C. C. Claiborne and M. Caruthers, commissioners of the Bank of Orleans, presented a petition to the Parish Court of New Orleans, stating “that they have some outstanding claims which they are desirous of selling from time to time, as they may deem most advantageous, and they pray your Honor that they may be authorized to do so.”

The following' order was made on this petition “ Let the commissioners be authorized to sell the outstanding claims, as within prayed for. — New Orleans, April 15th, 1846. — (Signed) Charles Maurian, Judge.”

It appears that under this order, Christy Cenas, auctioneers, formed lots of said outstanding claims, and sold the same on the 9th' of May, 1846. Lot No. 3 amounted to $8,929 93, and included “ a note of J. M. G. Cuddy, endorsed J. Rice, protested in 1840, for $2,802.” — “ Sold to A. A. Baudouin, agent, for $35.” On the 25th of May, 1846, W. C. C. Claiborne and C. A. Morin, commissioners, did, by virtue of the above adjudication, and for value received, transfer to A. A. Baudouin, agent, the above judgment, with subrogation “ to all the right, title and interest which the said commissioners had in the above judgment, No. 3040, at the time of the adjudication, and nothing more.”

Hr. John Rice died in New Orleans on the 26th of November, 1856, and his succession has been under administration since the loth of December, 1856. His real estate was appraised, in 1856, at $35,866. And according to the final account of the curator, filed 23d May, 1859, he has on hand $26,422 86.

It is admitted, that the real estate described in the inventory was in the possession of John Rice in 1836, and remained so up to his death, and that his titles to the same were of record in the Office of Oonveyances of this city. It also appears, that the books of the bank were burnt in July, 1857, by an order of the Third District Oourt; and it is not in evidence that John Rice was ever notified of the above transfer, or that any attempt was made to execute the judgment since 1842, excepting the opposition now filed to the curator’s account by Celeste Jmcíc Morin, wife of A. A. Baudouin, separated in property from her husband, demanding to be classed as a mortgage creditor of John Rice for the amount of the above judgment.

The curator and heirs of John Rice oppose the prescription of ten years to the right of action, and the prescription of 10, 20 and 30 years, to the judgment itself.

The claim was admitted by the District Judge.

Apart from the presumption of the extinguishment of the judgment before its adjudication to A. A. Baudouin, which may reasonably be inferred from the ability of Rice to pay the same, and the insignificancy of the price of adjudication ; this being a personal action, under the decision in the case of Kemp v. The Heirs of Diana Cornelius, 14 An. 301, is prescribed by the lapse of ten years.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Dis ■ trict Oourt be reversed, and that the opposition of Mrs. A. A. Baudouin be rejected, with costs in both courts.