
    L.A.PEEL, ADMR. OF A.L. PEEL, versus VIOLA ST. ANN PEEL
    NO. 8,219
    COURT OF APPEAL PARISH OF ORLEANS
    YUZLTAj.i A.Allá,JUDGE:
   BY: WILLIAM A. BELL, JUDGE:

On May 17. 1919, Albert L. peel of Mem Orleans ^was Milled at #936 Canal St.. His brother, William A. Peel, who qualified as administrator of his estate, has brought these y^rooeédings against Mrs. Yiola St. Ann, divorced wife of

' Richard Maroney, also known as second wife of Albert l. Peel, the same proceeding, Dudley Duplantier is made a co-defendant. The petitioner seeks to recover from theca defendants, a certain Studebaker five seated, six cylinder, touring oar, 1919 model, with motor number 64950, serial number, 238113, It is alleged that this car, with other property, the nature of which need not be discussed in this appeal, is property belonging to the estate of the deceased, Albert L. Peel, and that neither of the defendants has any right title or ownership therein. It is alleged that Yiola St. Ann, immediately after the death of the aforesaid decedent, unlawfully took possession of the said car, and subsequently transferred it, without any right 30 to do, to Dudley Duplantier, v.ho now, contrary to lavi, and against any rights of possession, continues to retain possession and control over said oar, against petitioner's demand made on behalf of the succession of which ho is administrator. It is alleged that the car in question vas acquired by the decedent during his marriage with Mrs. Jennie Blanchard, his divorced wife, and that said property was community property of said marriage, against which, by order of court in divorce proceedings of Mrs. Jennie Blanchard against her said husband, Albert L. Peel, there was an injunction prohibiting the deceased from selling or disposing ox said oar to the -irejudiee of the community formerly existing between the parties to said divorce proceedings. Upon allegations of feaf that the oar in question wou.13 be disposed of to the prejudice of the estate of Albert Z. Peel, the same was sequestered in the hands of Dudley Duplantier, under order of court, on the 21st day of July, 1919. Upon the following day, on motion of Dudley Duplantier., and upon a bond being furnished By him in the sum of $1,000, the writ of sequestration was bonded and the oar released by the sheriff unto the defendant, Dudley Duplantier, in whose possession the car has at all times remained during the pendancy of this proceeding.

It appears that almost immediately after the final decree of divorce eranted Mrs. Jennie Blanchard against her husband, Albert X. Peel, that the latter was married to Mrs. Viola St. Ann, the other defendant herein, the marriage taking place on the 15th of April, 1919. It is claimed by Viola St. Ann in her answer to these proceedings, that the car in question was given her by the deceased about caree weeks before her marriage to him, that is, the latter part of March, 1919. At the trial of the case, this defendant testifies that her name "Viola Peel." was cut upon the steering wheel of the ear; that this inscription was made about a week before her marriage to the decedent, but upon cross-examination, she says that the car was given to her about three weeks before her marriage, and that the letters, or inscription were not on the wheel when given her, and she finally admits, on cross-examination, that she does not know who placed the lettering on -the steering-wheel. Ihere is no proof in the record of any formal transfex of this properry to Viola St. Ann, nor that anyone was a witness to the act of donation, as claimed by her. On the contrary, it is shown that during the negotiations towards adjustment of the community interest between the decedent and his wife, duly divorced from him, that the said Albert L. Peel wrote a letter to his attorney under date of April 29, 1919, (some fourteen days after his marriage to Viola 8t. Ann) and particularly referred to said oar, as property forming part of the community previously existing between him and his first vafe, and concerning which a judgment for-partition had been rendered in the said divorce proceedings. A careful examination of the testimony relating to the relations between the decedent and Viola St. Ann, in regard to this property, is convincing, that she never had any interest or title in the same whatsoever.

It remains, under the circumstances, to determine the rights, if any, that 'Dudley Duplantier, the other defendant in this proceeding, had in the car herein sequestered. Duplan-tier has called one, Omer Vilac, in warranty into this proceeding, alleging that Vilac sold him the Studebaker car on or about June 4, 1919. This defendant-in-warranty has pleaded in effect, a general denial to the plaintiff's petition as well as to Duplantier's answer and call in warranty. The testimony-in regard to this transaction shows that Omor Vilac, through' his son, Fabian Vilao, a young boy of but trenty-tv.o years of age, doing odd jobs around his fathers blacksmith shop, and acting for his father, purchased from Viola St. Ann, the ear in question, by paying f-800 in cash therefor, to Iquís F. Burns, Rsq., then acting as lawyer or agent for Viola St. Ann. There was no formal bill of sale, but simply a receipt for the money, signed by Burns, only, and describing by number the particular Studebaker car. Omer Vilac, having learned from his son that this ear could be bought for f800, was doubtful whether he, hiin-s'élf, would buy it for the price mentioned, or whether he should buy it and transfer the same to his next-door neighbor and friend, Fred Roses, the latter being engaged in the business of purchasing-all kinds of .personal property upon which he could find opportunity for profitable trading. Omer Vilac, the night previous to the sale of the automobile to Duplantier, persuaded Fred Roses to purchase the machine* for t’c price of £850, and the Ini ter accord] ly gave Vilac his check payable to Viluc’s order for said amount. On the follow in* day, after advising a friend v.,vo linev the machine,, of his proposed purchase, Hoses concluded, upon the XriendTs advice, that he did not vout the machine, and at the noon hour of the same day, so informed Omer Vilac, v.ho had meanwhile purchased the machine free. Viola ¿t, Ann, through his son, Habían Vilac. Hoses1 check having been indorsed by Vilac and cashed b;r his son through a third party, the son retained £50 of the £ü50 for his commission in the matter, and payed the balance to Viola St. Ann’s attorney, as aforesaid. At this point Duplantier came into the transaction, by learning that Roses, who was Ms uncle, had declined the purchase of the car, and substituted himself in his uncle’s place. The car v/as thus sold and delivered to him instead of to his uncle, Fred Roses, he, (Duplantier) on the next day reimbursing his uncle for the £850 represented by the check given by Roses to Omer Vilac. Young Vilac denies that his father ever purchased the car, and that his transactions with Viola St. Ann through her attorney were entirely on his (Fabian Vilac’s) own account. However, neither the father,, nor son, when closely interrogated concerning the circuitous sale by Viola 3t. Ann, through Fabian Vilac to Duplantier, a purchaser substituted in Roses’ place, who originally issued the check for £850 to Omer Vilac, can satisfactorily explain why the said check was made payable to Omer Vilac. This fact, coupled with the second transaction which involved the issuance of a check*for £15.00 by Duplantier to Omer .Vilac, as additional compensation or commission connected with this sale, and further, Omer Vilac’s unsatisfactory explanation concerning the cashing of this check, form such record evidence as impe- us to the belief that Omer Vilac was undoubtedly the real purchaser of the Studebaker car from Viola St, Ann, and unquestionably was the only party from whom Suplantier, in turn, acquired the car.

There is nothing dubious or suspicious in the conduct of Duplantier, vvho appears from a most careful examination of the extensive ‘testimony in this case, to have been a careless but honest purchaser for value who relied upon his many years* confidence In Omer Vilac to lull him into the belief - without a business-like inquiry - that Vilac*s title in the car was reliable and translative. It is quite possible that Vilac in turn believed he was purchasing the car from its true owner.

Our brother of the Trial Court, who heard and saw the innumerable witnesses in this case, was undoubtedly convinced, as are we, that Viola 3t. Ann at no time had valid title to the car conveyed by her to Omer Vilac, and it follows that Omer Vilac who purchased from one a perfect stranger to him, without caution or satisfactory inquiry as to her title, must be found liable in warranty to his vendor, who is in turn, liable to the estate -of the true and valid owner.

It is contended by Counsel for Vilac that plaintiff, as administrator, cannot stand in ¿judgment, and is without authority to institute a proceeding of this nature, there being no allegation or proof that there are debts of the succession to be paid, and that in fact the estate is shown to be amply solvent, and that all dcbt3 having been paid, the administrator^ solo duty is to promptly close the estate and turra same over to the rightful heirs.

No such exception or plea has been filed by Vilac, vlo now clines to the exception of no cau:e of action herein filed by vis venadeo, Suplantier, and urges thr.t Duplantier* defense by vay of txcc-tion should be .'i-r.l,-it.-'..i ued to vis benefit. ..‘ere •’ - a pi ion •Is Lie to Vilac thou. h only pleaded by Huplantier, re are of the opinion that it is not a sound defense for either. The authorities cited by counsel are not applicable as have been plainly shov.-n by the clear and veil considered cs3e: Woodward, Admr. vs. Thomas et als., 38 Ann; 239 - where the Court pointed out that though an estate be solvent it v;as the duty of an administrator, the heirs not yet being in possession, and the affairs of the succession being unsettled, to reclaim such property as he may have discovered belonging to the estate, held adversely by a third party under-title not derived from the decedent. In this decision many of the authorities cited by Counsel for Vilao were reviewed and differentia ted from the faet3 of the ease then under discussion, and v.hich are in many respects similar to the facts now before us. La. Digest, Vol. III., Par. 67 and Par.83. It has also been held that an administrator may sue lor debts due the estate as long as he continues to be administrator, notwithstanding the fact that the succession itself owes no debts - Keane vs Goldsmith, 14 Ann. 349; Kluker vs Kent, 127 Ann. 37; Labit vs Perry, 28 Ann. 591.

It is also contended by Tilac that the administrator in any event cannot have judgment for the whole auto for the reason that if it belonged to the first community existing between decedent and Mrs. Jennie Blanchard Peel (the' first wife, now divorced) the effect of the divorce was to dissolve the community and therefore Mrs. Jennie BTanchard Peel's half interest cannot be now claimed in these proceedings by plaintiff herein, who is without authority to- represent her. It is further olaimed that the heirs of the decedent should have been joined in this proceeding. There is no merit in these contentions, all of which were, in our opinion, rightly disregarded by the trial court. In any event the defendant in warranty cannot now be heard to urge these defenses in argument or brief only. It may be adde'd that v/hatever rights the decedent's first wife had or may have had in the partition, or ■the results of partition ordered to be taken in her divorce proceedings, are matters of either amicable or legal adjustment between herself and her divorced husband's administrator, and are not grounds or pleas of defense available to one called in warranty to restore the whole of which his vendee has been evicted. It is true that Code of Practice, Art. 384, gives to a warrantor the right to plead every exception which the defendant calling him might plead, but such exceptions, when adopted or resorted to by warrantor, must be by himself specially pleaded, and not urged simply in argument or brief.

It is further contended by counsel for Vilac that should this warrantor be found liable to Duplantier, there should be judgment reserving to Vilac the right to retain against the whole price originally paid by Duplantier, such amounts as would cover the impairment to the car arising from the latter's use thereof for almost three years since the institution of this suit. He cites with confidence Art. 2508 R.C.C., which provides as follows:

"If, hoc ver, the thing sold was impaired by the buyer and he has reaped some benefit therefrom, the seller has a right to retain, on the price, the amount to which such damages may be estimated in favor of the owner who evicts him."

This article of the Code, replete with equity, cannot be invoked or applied to conditions arising subsequent to the suit for eviction, or subsequent ±0 the call in warranty. Adjustment of claims between the parties, in such manner as is pointed out by the above Article, is only possible as to the status of the parties and condition of the property at the time of the suit. If it were otherwise, there would be additional and amendatory decrees up to the final termination of controversy in the court of highest and final jurisdiction.

There is ample proof in the record to justify the conclusions of the trial judge that the value of the Studebaker Oar involved herein, is Eight Hundred Dollars, and v:e can find no error in the decree directing that defen-¿ants restore the car unto plaintiff in such condition as existed at the date of its sequestration, or failing therein, there be judgment in the amoun< -foreaaia. As provided by Arto ¿b5 of the Code of Practice, the judgment should be ex-ecutory on the part of the plaintiff against the defendants and on the part of the defendant, Duplantier, against the warrantor, Omer Vilac, the latter being corbelled to pay unto Dudley Duplantier the sum^Eight Hundred Dollars, v ith legal interest and costs- as stipulated in said judgment conditioned, however, upon the said Dudley Duplantier first restoring.to plaintiff the car as directed and payment of all costs herein which plaintiff has incurred or upen payment by said Duplantier, unto plaintiff, of the monied judg-.ont with interest and C03tso

March 27 1922.

It is therefore ordered, adjudged and decreed, that the judgment of the trial court as appealed from, be amended only in so far as to direct that Omor Vilac shall be, and he hereby is, condemned to pay unto Dudley Dupla,uier the sum of Eight Hundred Dollars, with legal interest from judicial demand and all costs of both courts, conditioned upon the full compliance by Dudley Duplantier of the alternative judgment for which he, as defendant, in solico, has been cast, in favor of plaintiff, y/illiam A. leel, Administrator of tre Succession of Albert L. feel.

JUDGMENT AilSKDILD AlíD AS Ah.HIvD^iD ~ AEÑIj.H-ifD  