
    
      COLLINS & AL. vs. ANDREWS.
    Appeal from the court of the fifth district.
    a contract, by which a tu-pay "^interest on a claim due i.y the minor, on be-íóngér°wterm ©f credit, is not void, but voidable.
   Matthews, J.

delivered the opinion of the court. This suit is instituted to compel the r defendant to render an account of hismanage- . < . rt T l rt it* ment of the succession of Luke Lolhns, ap agent of the plaintiffs, with the power and privileges of a curator. The accounts by him rendered, with evidence to support them, were submitted to referees, whose report was adopt-r ed bv the district court as the basis of its iudg-J JO ment, and being in favor of the defendant, the t * ./y* plamtifis appealed.

A D(1 it the t' e contract not be set

the au-tycf an 2gent ⅛⅛ from ¡S-sponsibmtj m not collecting debts put into hi* fjir collection.

Several exceptions were filed against the 1 ° statement made by the referees, which were overruled by the court below. The objections _ to the report were founded on matters of fact; and as the facts of the cause do not come up 1 on the record, they cannot be regularly noticed by this court.

The case presents two principal questions of law. The first relates to the legal effects of an instrument of compromise and mortgage entered into by the widow on her own account .and that of the heirs of her deceased husband, as their tutrix by nature, with the creditors of the estate. By the provisions of this act, time was allowed for the payment uf the debts, and a mortgage taken on the property of the succession to secure their payment, according to the terms agreed on, together with interest and damages which might result from non-performance on the part of the obligors.

The second question arises out of a failure on the part of the defendant to collect a part of the debts due to the succession, resulting fr°m a sa*e °f property thereof, effected for the purpose of making payment to its creditors.

There is also a subsidiary question as to the right of the creditors to recover interest, after full and final payment to their agent of the principal debts.

Previous to entering into the consideration of these questions, it is proper to give a short history of the case: Luke Collins died owing considerable debts to several persons; at the time of his death, it seems to have been considered that his succession could not have been sold, unless at a price less than its real value; and for this reason, his widow, in her own right as a partner in acquests and gains, and as tutrix of her minor children, entered into the agreement above stated with the creditors of the community. Having failed to meet the payment of the sums therein stipulated, on the terms prescribed, the property of the succession was sold by the consent of all persons concerned therein, widow, heirs and creditors; and the defendant was appointed by the widow and heirs to collect the amount for which the property sold on certain terms of credit, Was also empowered by the creditors to receive and hold the money thus collected in discharge of their claims against said community or succession.

As to thefirstof these questions, proposed arising out of the act of mortgage made in favor of the creditors by the widow of L. Collins, ao far as it affects the rights of her minor children, considered exclusively as a compromise respecting their rights, being entered into without the authority required by law, it was perhaps null and void, ab initio. See Old Civil Code, p. 70, art. 65 & 10. Martin, 726. But a tutor may pay the debts of a succession under his management, and in rendering an account of the position of his affairs to the heirs, such payments would certainly be properly placed to his credit. In the instance before the court, the tutrix, by agreement, prolonged the time of payment, evidently with the intention of benefitting her minor children by preventing a sacrifice of their father’s estate, and her own property as partner in the community.

The act, it is believed, may be viewed as one entered into by the tutrix in relation to the payment of debts, iustly owing and due, from the succession of the intestate; thus viewed, it is not absolutely void, but only voidable, on shew-in§ inJuryto the minors-

Now the facts of the case, so far as exhibited by the record, shew that no damage occurred to the estate of the minors, in consequence of the postponement of the payment of the debts due from the inheritance. Time was obtained on condition of paying legal interest, on failure of payment at the periods stipulated in the contract; opposed to such interest, was the probable profits of the estate, until it was sold, which may fully be presumed to have equalled the rate of interest payable on the debts. Febrero, p. 2, lib. 2, cap. 3, s. 2, Nos. 61, 62, & 63.

In relation to the right of the creditors to recover interest, the principal being satisfied, it suffices to observe, that the whole amount, both principal and interest, of their claims having been paid into the hands of their agents; if the interest were legally due at the time the money was thus received it was imputable to die payment of interest, which was consequently paid simultaneously with the principal.

The second question is in relation to a bill 1 of exceptions taken to the opinion of the a quo, by which he required the plaintiffs to prove negligence on the part of the defendant in not recovering two debts, amounting to 880 dollars, due to the succession of L. Collins. The authorities on this subject have the appearance of variance; but we are inclined to think the court below erred in throwing the burthen of proof on the plaintiffs. It is, in our opinion, incumbent on the defendant to shew the occurrences which prevented him from collecting the sum of 740 dollars from Ligot, and 140 dollars from Moore; or, in other words, to shew due diligence. See 11 Martin, 190 & Seq.

As the defendant may have been prevented by this erroneous opinion from proving his diligence in endeavoring to collect these sums, it is proper to send the cause back for a new trial.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed ; and that the case be remanded for a new trial, with instructions to the court below to require the de-to prove diligence: and the appellani r o pay costs of appeal.

Todd and Simon for the plaintiffs, Brown* son and Bowen for the defendant.  