
    106 So.2d 723
    ROY O. MARTIN LUMBER CO., Inc. v. Mrs. Cleo Bryant STRANGE.
    No. 43664.
    March 17, 1958.
    On Rehearing Nov. 10, 1958.
    Rehearing Denied Dec. 15, 1958.
    
      DeBlieux & Babin, Baton Rouge, for defendant-appellant.
    Maurice T. Mouton, Alexandria, for plaintiff.
   HAWTHORNE, Justice.

Roy O. Martin Lumber Company, Inc., instituted this suit against Mrs. Cleo Bryant Strange, alleged and shown to be a resident of Millington, Tennessee, for the purpose of effecting a partition of 320 acres of land situated in Rapides Parish, Louisiana, by private sale pursuant to the provisions of R.S. 9:171 et seq.

As required by the statute a curator ad hoc was appointed to represent the absent defendant, notice of filing of plaintiff’s petition was published, and a rule issued upon the curator ad hoc to show cause why the relief prayed for should not be granted. Prior to trial of the rule the absent defendant appeared through counsel of her own choice, and, after certain preliminary exceptions had been disposed of, filed her answer.

It is conceded that plaintiff is the owner of an undivided 3Ys2 interest in the 320 acres, and that the non-resident defendant is the owner of an undivided %2-interest. Plaintiff alleged the tract to have a total value of $25,664.05, and for the purpose of effecting a partition sought to acquire the Ys2 interest of the defendant for $805.50. Experts were called by the parties to testify as to the value of the property. After a hearing to establish the fairness and advisability of a private sale of the property to effect a partition, the court found that the entire property had a value of $28,800 and accordingly valued defendant’s interest at $900.

Judgment was rendered in favor of plaintiff and against defendant ordering a partition by the private sale of the undivided interest of the defendant to plaintiff, all pursuant to the statute. The Court of Appeal affirmed this judgment (see 95 So.2d 853), and the case is now before us under our supervisory jurisdiction.

R.S. 9:171 under which this suit was instituted provided before it was amended in 1956:

“Whenever to effect a partition, it is desired to sell for cash at private sale an entire property, regardless of its divisibility, and a record owner or owners of any interest or interests in the property are absent from the state and not represented of record in the parish where the property is situated, or his or their residence is unknown, or it is not known whether the record co-owner is or is not near [dead], the other co-owners may file a petition in the district court of the parish in which the property is situated setting forth a full description of the property to be sold, the price and conditions of the private sale, and the reasons which make it advantageous to the co-owners to sell the property at private sale for cash to effect this partition.”

R.S. 9:172 requires publication of notice of the filing of the petition in a newspaper published in the parish in which the property is situated, the appointment by the court of an attorney at law as curator ad hoc to represent the absent co-owner, and the service of a copy of the petition upon the curator ad hoc, etc. Section 173 provides for the issuance of a rule directed to the curator ad hoc to show cause why the prayer of the petition should not be granted. Section 174 provides that the court may appoint experts to examine into the condition and value of the property, and that upon the trial of the rule the court shall hear such evidence as is necessary to establish the fairness and advisability of a private sale to effect the partition. Section 175, before its amendment in 1956, provided that in the event the sale is ordered, the court shall fix the minimum price to be accepted and authorize the curator ad hoc to execute the necessary act on behalf of the absent, unlocated, or deceased co-owner, etc. Section 176 provides for the deposit in the registry of the court of the share of the sale price accruing to the absent, unlocated, or deceased co-owner, and Section 177 provides that any property sold under the provisions of the act may be purchased by any co-owner or co-owners.

Relator does not contend that any of the procedural requirements of the statute were not complied with. In this court her primary contention is that the provisions of R.S. 9:171 et seq. cannot be used to effect a partition by private sale in this case because the whereabouts of the non-resident defendant was known, and she was not an absentee in the contemplation of the statute. Counsel for .relator say that a partition may be enforced by private sale under the provisions of this statute only in those instances where the co-owner has left the state and his whereabouts is unknown.

As we read the statute we think its provisions are clear that a suit for a partition by private sale can be instituted under one or more of the following circumstances: (1) Where a record owner of any interest in the property is absent from the state and not represented of record in the parish where the property is situated; or (2) where the residence of the co-owner is unknown; or (3) where it is not known whether the record owner is or is not dead.

That such a suit can be filed under any of the circumstances set out above is made perfectly evident by the provisions of subsequent sections before their amendment in 1956. For instance, Section 172 provides for the appointment of a curator ad hoc to represent the absent, unlocated, or deceased co-owner or his or their heirs, and Section 175 authorizes the curator ad hoc “to execute the necessary act in his capacity on behalf of the absent, unlocated, or deceased co-owner or co-owners, or his or their heirs, and receipt for the share of the said absent, unlocated, or deceased co-.owner or co-owners”.

We fail to see any merit in relator’s contention that she is not an absentee within the meaning and contemplation of the statute, for, as said by the Court of Appeal, “ * * * the provisions of the statute itself, as above quoted, are so clear as to deny any possibility of misinterpretation. This defendant, unquestionably, in the words of the statute, was ‘absent from the state and not represented of record in the parish where the property is situated * * * ’ ”. See 95 So.2d 853, at page 855.

It may be true, as relator contends, that the words “absent” and “absentee” have a variety of meanings. However, the meaning of “absent” in the statute under consideration is perfectly clear. It has reference, as the statute says and as the Court of Appeal found, to one “absent from the state and not represented of record in the parish”. R.S. 9:171 before its amendment by Act 534 of 1956. Moreover, seé Louisiana Civil Code Article 3556(3), where the term “absentee” is defined as follows:

“An absentee is a person who has resided in the State, and has departed without leaving any one to represent him.
“It means also • the person, who never was domiciled in the State and resides abroad.
“In matters of succession, the heir whose residence is not known is deemed an absentee.”

Relator next contends that the private sale of a non-resident’s property at a price solely determined by the purchaser would constitute a violation of due process and equal protection of the laws. Relator did not plead the unconstitutionality of the statute. In any event, however, the statute itself does not, as she states, permit the property to be sold at private sale to effect a partition at a price solely determined by the purchaser. The statute makes it clear that the court may appoint experts to examine into the condition and value of the property, and upon the trial of the rule shall hear such evidence as is necessary to establish the fairness and advisability of a private sale to effect a partition and shall fix the minimum price to be accepted. In the instant case plaintiff appraised the entire property at $25,664.05, whereas the court at the hearing determined the value to be $28,800.

Relator next argues that if this court should find that the statute is applicable, then there was error in the holding that the lumber company alone could purchase the property, for, under this statute, in the partition of an absentee’s property all the co-owners must have an equal opportunity to purchase the property. The lower court did not hold that the lumber company alone had the right to purchase the property. The statute itself provides that any property sold pursuant to its provisions “may be purchased by any co-owner or co-owners”. Relator never sought, and was never denied, the opportunity to buy the property as one of the co-owners.

Finally relator says that the partition of an absentee’s property must be advantageous to all the co-owners and not just to the party seeking the partition. In this connection she argues that the price fixed was of great advantage to the lumber company, but that the record discloses there was no advantage to her. The trial judge in his reasons for judgment reviewed all of the evidence adduced and the value placed on the property by the experts, and in fixing the price concluded that it was advantageous to both co-owners to sell the property at private sale under the provisions of the statute. Furthermore, as we have said, he heard evidence to establish the fairness and advisability of the private sale of the property. After reviewing all the evidence adduced we cannot say that he erred in ordering the partition.

For- the reasons assigned the judgment of the Court of Appeal is affirmed.

McCALEB, J., dissents with written reasons.

McCALEB, Justice

(dissenting).

' The construction given by the majority to R.S. 9:171-178 has the effect, in my opinion, of rendering the statute unconstitutional — in that it deprives a non-resident co-owner of property situated in this State, who has made a personal appearance and subjected himself to the jurisdiction of our courts, of the equal protection of our laws pertaining to partition and, therefore, is violative of the Fourteenth Amendment to the Constitution of the United States as well as Article 1, Section 2 of the State Constitution, guaranteeing that no one shall be deprived of his property without due process, of law.

R.S. 9:171-178, which is a counterpart of R.S. 13:4976-4983, grants to residents of the State unusual rights with respect to absentee co-owners with whom they hold property in common. While the Act is premised on the idea of effecting a partition, for practical purposes — as shown by the decision in this case — it confers upon the resident owner the right to purchase or expropriate the interest of the absentee co-owner by paying a price fixed by the judge on the advice, if need be, of experts. These proceedings are conducted contradictorily with a curator-ad-hoc and, in my interpretation of the statute, envisage only cases of absent or unknown persons, who make no appearance and are reached only by substituted service.

As I see it, the sole justification for such a statute, which is in derogation of the common right and, therefore, must be given a strict construction, is that the absence of a non-resident co-owner (or where there is an unknown co-owner) necessarily deprives the resident co-owner of the ability to negotiate with such absentee or unknown, with a view of acquiring his undivided interest or having the absentee purchase the resident’s interest. In these circumstances, the Legislature in its wisdom finds it to be just and desirable to have a representative appointed for such absentee or unknown to confect, in essence, a compulsory sale of the absentee’s interest with the approval of the court. But it seems obvious to me that, once the absentee appears in court and demands the rights accorded him by our Civil Code in partition cases, the proceedings under R.S. 9:171 et seq. necessarily abate and the laws pertaining to partitions, private and judicial sales, are applicable and should be employed. That the Legislature so intended can hardly be doubted, forasmuch as it specifically provided in R.S. 9:178 that nothing contained in the statute “shall be construed as in anywise altering the existing laws relating to partitions, * * * except insofar as they are in conflict with the provisions of this Chapter.”

Thus, it would seem that the usual rule concerning the effectiveness of the appointment of a curator-ad-hoc in proceedings against non-residents applies and, with the personal appearance of the absentee or non-resident, the appointment of the curator-ad-hoc is necessarily rescinded. See Herbert v. American Soc. of C., A. and P., 210 La. 240, 26 So.2d 732. And, when the appearance is made and the non-resident subjects himself to the jurisdiction of the court, he is and'should be entitled to all rights given to other litigants whether they are residents or non-residents. Surely, if, in the instant case, Mrs. Strange had initiated an action for a partition, the lumber company could not be heard to say that it would have the right, under R.S. 9:-171, either to have the property sold at private sale or that it should be permitted to 'expropriate for its private use Mrs. Strange’s %2nd interest upon paying her $900. So, what difference is there as to her fundamental rights, that she has appeared within this jurisdiction and demanded them in answer to plaintiff’s de-. mand for a private sale?

To construe the statute involved in this case as applicable, when the defendant has made a personal appearance and subjected herself to the jurisdiction of the court, results in depriving her of the equal protection of our laws and thus renders, in my estimation, the statute unconstitutional.

I respectfully dissent.

On Rehearing

PONDER, Justice.

A rehearing was granted in this case in order that we might reconsider our holding that LSA-R.S. 9:171 et seq., dealing 'with the partition of an absentee’s property by private sale, was applicable to the defendant herein, a resident of Tennessee, whose address was at all times known to the' plaintiff, and who appeared through counsel before the proceedings were heard.”

We took the position on original hearing that even though the address of the absent defendant was known to the plaintiff and' even though the defendant made an appearance before the proceedings were heard, the provisions of LSA-R.S. 9:171 et seq. were applicable.

This suit was instituted by Róy O. Martin Lumber Company, Incorporated, under. the provisions of LSÁ — R.S. 9:171 et seq., seeking the partition of certain property in which it owned a 3%2nd interest, and a %2nd interest being owned by the defendant, Mrs. Cleo Bryant Strange. The plaintiff sought to buy the defendant’s interest at private sale under provisions of these statutes. It is alleged in the plaintiff’s petition that the defendant is an absentee from the state and that her domicile and residence is at 4782 Easley Street, Milling-ton, State of Tennessee.

Upon the filing of the petition, the court appointed a curator ad hoc to represent the defendant. The curator ad hoc immediately contacted the defendant, using the address set out in plaintiff’s petition, informing her of her proceedings. The defendant employed counsel of her choice who appeared of record, before any steps were taken in the proceedings, and interposed an exception of no right and no cause of action based on the ground that the statutes relied upon were not applicable.

Upon the appearance of defendant’s counsel, the lower court discharged the curator and the proceedings was carried on and disposed of contradictorily with the counsel whom the defendant had employed. The lower court overruled the defendant’s exceptions and, after a hearing on the merits, rendered a judgment ordering the partition by private sale, conveying the defendant’s interest in the property to plaintiff. This judgment was affirmed, on appeal, by the Court of Appeal. See 95 So.2d 853. On application o'f the defendant, we granted writs and, after a hearing, affirmed the judgment. A rehearing was granted upon application of the defendant.

The defendant contends that the provisions of LSA-R.S. 9:171 et seq. are not applicable for the reason that her whereabouts were well known to the plaintiff and that because of her appearance through counsel of her own choice, having been made counsel of record, she was not an absentee within the meaning of the statute. The defendant concedes that plaintiff is entitled to a partition under the law but contends that the partition must be by ordinary partition proceedings via public sale.

It appears from the record that the plaintiff well knew the whereabouts of the defendant and that it had negotiated with her through correspondence for the purchase of her interest in the property but the parties were unable to come to any agreement.

Section 171, Title 9 of the Revised Statutes is entitled “Partition of Absentee’s Property by Private Sale.” Section 171 (before amendment by Act 534 of 1956) reads as follows:

“Whenever to effect a partition, it is desired to sell for cash at private sale an entire property, regardless of its divisibility, and a record owner or owners of any interest or interests in the property are absent from the state and not represented of record in the parish where the property is situated, or his or their residence is unknown, or it is not known whether the record co-owner is or is not near, the other co-owners may file a petition in the district court of the parish in which the property is situated setting forth a full description of the property to be sold, the price and conditions of the private sale, and the reasons which make it advantageous to the co-owners to sell the property at private sale for cash to effect this partition.”

Plaintiff contends that since the defendant was absent from the state and not represented of record when the suit was brought that the provisions of LSA-R.S. 9:171 et seq. govern.

If we were to assume that the defendant’s rights are governed by LSA-R.S. 9:171 et seq. at the time this suit was filed, she would no longer be amenable to the provisions of these statutes after she made her appearance in the proceedings through an attorney of record. From a reading of these statutes dealing with the partition of an absentee’s property, it is obvious that the provisions were intended to apply to one who was not only absent but was in fact unrepresented in the proceedings. This is evident from the fact that these statutes require the publication of the notice of the filing of the petition in a newspaper and the appointment of an attorney at law as a curator ad hoc to “represent the absent, unlocated, or deceased co-owner.” It is clear from the language used therein that it only applies to the absentee who has made no appearance because it is stated: “Moreover, all of the proceedings shall be maintained contradictorily against the curator ad hoc in his said capacity.” It is further provided that the curator alone is authorized to execute the act of sale in his capacity on behalf of the absent, unlocated or deceased co-owner. It also provides that the share due the absent, unlocated, or deceased owner shall be deposited in the registry of the court. Certainly these provisions of the statute cannot be carried out under the facts in this case. The whole tenor of LSA-R.S. 9:171 et seq., dealing with the partition of an absentee’s property, clearly demonstrates that these provisions were only meant to apply to an absentee whose whereabouts are unknown, who remains unknown, and who has made no appearance, either in person or by counsel of record.

For the reasons assigned, the judgment of the lower court and the judgment of the court of appeal are reversed and set aside and the suit is dismissed at the cost of the plaintiff, Roy O. Martin Lumber Company, Incorporated.

HAWTHORNE, J., dissents.

FOURNET, C. J., absent. 
      
      . After institution, of this suit R.S. 9:171 . et seq. were amended by Act 534 of 1956.
     
      
      . Defendant was at one time apparently willing to accept $1,000 for her interest with reservation of the minerals.
     
      
      . See LSA-R.S. 18:4976 and comment thereunder.
     
      
      . It is to be noted' that the provisions of R.S. 9:171 et seq. (before their amendment in 1956), dealing with the partition of an absentee’s property by private sale, are repeated almost word for word in R.S. 13:4976 et seq., and that the source of all these laws is Act 457 of 1948. Cf. R.S. 9:691 et seq. which provide for the partition by private sale of property in which a minor or an interdict has an interest.
     
      
      . As early as 1821, it was stated by this Court that every law empowering our courts to decide upon the rights of absentees must be strictly construed and the formalities prescribed exactly followed “Litigatoris absentia Dei praesentia repleatur”. Stockton v. Hasluck, 10 Mart.,O.S., 472.
     
      
      . In this connection see comment of Professor Harriet S. Daggert, 3 L.S.A.,58 and 59*
     