Thompson v. Miller

68 So. 220, 137 La. 79, 1915 La. LEXIS 1961

• Court: Supreme Court of Louisiana
• Decided: April 12, 1915
• Docket: No. 21154
• Status: Published

Opinion

LAND, J.

In 1907 plaintiff sold to Dennis Miller, a married man, 320 acres of land for $9,600, of which $1,600 was paid in cash, and the remainder was represented by five notes, each for $1,600. Mrs. Celeste Miller, the wife, died in February, 1911, leaving nine children | of the marriage. On May 28, 1913, the succession of Mrs. Celeste Miller was opened and closed by proceedings as follows:

Petition of Dennis Miller and of the heirs of his wife to have the community property decreed exempt from inheritance taxation, and to have the plaintiffs recognized as joint owners of the same in the proportion of one half to Dennis Miller and the other half to the heirs of his deceased wife. The tax collector made no opposition, and judgment was rendered as prayed for by the petitioners. The petition was signed by ITeinen & Modisette, attorneys, and was verified by the affidavit of Philip Miller, one of the heirs of Mrs. Celeste Miller.

On July 10,1913, the heirs of the wife signed an instrument, purporting to be a cash sale, for $18,812.50, conveying their undivided half interést in all the community property, real and personal, to their father, Dennis Miller.

On April 15,1914, Dennis Miller mortgaged unto the Calcasieu Trust & Savings Bank most all of the said real property to secure a loan of $6,328.68, represented by his note.

On August 14, 1914, plaintiff sued out ex-ecutory process on the notes and mortgage of date June 14, 1907, under which the lands sold to Dennis Miller on said date were seized, sold, and adjudicated to said plaintiff, the vendor, for the price of $8,300, leaving an unsatisfied balance of $3,673.66.

On November 2, 1914, the present suit was instituted to recover said balance of the defendants, Dennis Miller and the heirs of his wife. The petition alleged that said heirs had accepted the succession of their mother “purely, simply, and unconditionally.”

Dennis Miller made no defense. The heirs denied that they had accepted the succession of their mother as alleged, and averred that the petition in their names for recognition of heirship, etc., was filed in said succession without authorization on the part of the respondents, or any of them, and without their permission, knowledge, or consent. Respondents further averred that they have always renounced, and intended to renounce, said succession, have never intermeddled in its affairs or management, and have never received anything of value therefrom, hut have left the entire management of the succession to their father.

As to the deed from them to their father, referred to supra, the respondents averred that the same was absolutely without consideration, and was signed by them through error and misrepresentation, believing that it was a renunciation of their rights in said succession in favor of their father, Dennis Miller.

The case was tried, and there was judgment in favor of the plaintiff against Dennis Miller, but plaintiff’s demands against the other defendants were rejected. Plaintiff has appealed.

[1, 2] All the heirs of Mrs. Celeste Miller, except Philip Miller, testified that they never employed, or authorized the employment of, Mr. Heinen as attorney for their mother’s succession. Mr. Pleinen was consulted by Dennis Miller and his son, Philip, and understood that the latter represented the other heirs. The petition for recognition of heir-ship, etc., was signed by Mr. Heinen in his firm’s name, and was verified by the affidavit of Philip Miller, who is certainly estopped by his oath to deny the authority of Mr. Heinen to file the petition and conduct the proceedings to final judgment. The other heirs had nothing to do with the employment of counsel. Most of them lived in another parish, and all were induced by the representations of Philip Miller to believe that the deed to their father was a mere giving up or renunciation of their rights in the succession of their mother. The deed itself was without consideration, and as a conveyance of property was a mere sham. Plaintiffs’ rights had already accrued, and were secured by vendor’s privilege and special mortgage.

It appears from the evidence that Mr. Heinen was also attorney for the plaintiff, and in opening and closing the succession of Mrs. Celeste Miller acted in the interest of" Dennis Miller and the creditors of the community. The rights of the plaintiff were in. no wise affected or prejudiced by the execution of the sham deed in question.

Plaintiffs’ contention that defendants cannot collaterally attack the judgment recognizing them as heirs of their mother is without merit, since all of them, except Philip, were-strangers to the proceedings and decree.

In the recent case of State ex rel. Putch v. Rockett & Putch, 68 South. 189 ¹ (No. 20,983), this court held that a judgment rendered on a waiver of citation by an unauthorized attorney was an absolute nullity and could be' assailed collaterally. The same principle applies to a decree rendered on a petition signed by an unauthorized attorney.

Plaintiff contends that, the other heirs having renounced, Philip Miller, as sole heir of his mother, is bound for one-half of the debt sued for, with costs. Philip was recognized as heir for one-eighteenth of the community property, and thereby became liable for the same proportion of the community debts. Philip’s coheirs did not renounce in his favor, but all the heirs renounced In favor of their father. Philip’s liability as heir was-not increased by the transaction.

It is therefore ordered that the judgment appealed from be reversed, in so far as it rejects the demands of the plaintiff against Philip Miller, and it is now ordered that the-plaintiff do have and recover of the' said Phillip Miller the sum of $204.69, with 8 per cent, per annum interest thereon from October 24, 1914, until paid, with costs, and that as thus reversed and in part amended, said judgment be and is affirmed; costs of appeal to be paid by the said Philip Miller.

O’NIELL, J., concurs in the decree only.

1 136 La. 1091.