
    No. 240.
    James D. McEnery, Tutor, etc., v. William H. Letchford Co. et al.
    If the property of tho minor has boon seized by a, judgment creditor of. the tutor in his individual capacity as tho tutor’s individual */».jperty, the tutor is tho proper paity to enjoin the salo thereof in behalf of tho minor. If, however, the question of toe validity of tho minor’s title to tho property becomes tho subject of adjudication, then the uudertutor is the i>roper party to bring the suit.
    "Where tho titlo to property is ostensibly in the minors, a judgment creditor of tho tutor in his individual capacity can not maintain a seizure thereof on i ho ground that the tutor i» in possession, unless ho allego that tho title of tho minors is simulated. In such a caso the judgment creditor must first resort to a revocatory action.
    APPEAL from tlie Fourteenth Judicial. District Court, parish of Ouachita.
    TV. J. Q. Baker, Attorney at Law, Judge ad hoe.
    
    
      Isaiah Garrett, for plaintiffs and appellees.
    
      John Say, for defendants and appellants.
   Howe, J.

The plaintiff, as tutor of his minoi children, enjoined the-sale of certain lands and immovables by destination thereto attached upon the allegation that they were, the property of the minors, but had been seized under judgments in favor of the defendants against M. T.. Mason, James D. MoEnery and S. Weil & Bro. We find it necessary to consider hut two points :

Jfirst — The defendants except to the right of the plaintiff, James D. McEnery, to stand iu judgment on the ground that the executions enjoined in this case were issued against him personally, and that if the property should he sold the funds would go to pay his debts, a fact which creates in him an interest opposed to that of tho minors and makes it necessary that the under tutor should bo a party plaintiff! They cite in support of this view C. C. 301; 2 La. 146; 11 La. 189; 7 R. 169; 2 Au. 960. The exception was overruled, and they filed a general denial merely. The court a qua, .gave judgment perpetuatingtlie injunction and quieting the minors in their title and possession of the property described in tho petition. We think there is some force in the exception, so far as the demand of the plaintiff that the minors he quieted in their title is concerned. To do that we think it would be moro regular to require the under tutor to be present as a party, so that the minors might he bound in caso tho defendants should be successful.

But so iar as the demand for an injunction against the seizures complained of is concerned, we think in this case the tutor alone can stand in judgment. It would be a vain thing, therefore, to dismiss or remand when we perceive that the plaintiff is entitled to a part of the iclief prayed for, and such part will answer the purpose he has in view. The minors, in this case, are in i>ossession under a title ostensibly valid and recorded iu I860. The defendants disregard this title and proceed by direct seizure in 1867. They do not allege simula■tion. Tlicir answer is a general denial. There is not a whisper in tho a-ecord against the good faith and reality of the minors’ title and tho fiduciary character of the possession of the plaintiff, their tutor. The record presents a bald case of seizure of what is ostensibly the property of the minors, without any revocatory action. It seems clear that under such circumstances the tutor, whom the law endows with the possession and charges with the administration of the minors’ estate, has a right to enjoin such a seizure and compel the creditors to resort to a proper action.

Second — As already stated there was no charge of simulation in the pleadings, and it is not necessary to discuss alleged informalities in tho minors’ title. We think, on the merits, that tho injunction should ho perpetuated, but the question of title of the minors left open as the ■subject of a direct action if the same be deemed desirable.

It is therefore ordered that the judgment appealed from, so far as it perpetuates tho injunction issued herein, with costs of the lower court, be affirmed, and in other respects reversed; and tiiat appellee pay the •costs of appeal.

Ludeling, C. J., recused  