
    C. B. Lecarpentier v. F. J. Lecarpentier.
    In all judicial partitions, tlie fact that the property cannot he divided in hind, must he made to appear by a report of experts. But a sale made under a consent decree has not the effect of a judicial partition, and does not affect the rights of mortgage creditors.
    from the Fourth District Court of New Orleans, Strawbridge, J.
    
    
      Le Gardeur, for plaintiff,
    contended: Marguerite Lecarpentier, Charles B. Lecarpentier, and Franpis J. Lecarpentier, were co-proprietors of a lot of ground, with the buildings thereon, situate in this city. M. and C. B. Lecarpentier being unwilling to remain any longer in division, but finding that the share of F. J. Lecarpentier was subject to the legal mortgage against him, as tutor of his minor son, applied to the Fourth District Court, for a judicial partition by licitation. F. J. Lecarpentier was aware that “ ex natura rei” the properly could not possibly be divided in kind, and knowing that under the provisions of article 1215, of the Louisiana Code, he could not compel his co-proprietors to hold the property in common with him, gave his assent, not “ ex volúntale,” but “ ex necessitate,” to the prayer in the petition. A judgment was thereupon rendered by the court, under which the property was sold at public sale, and after the legal advertisements, to the defendant in the rule, Mrs. Samory, for ten thousand dollars. Some difficulty then arose in consequence of the legal mortgage which F. J. Lecarpentier's share was subject to ; and, in order to facilitate the passing of the act, it was agreed that the whole price should remain in the hands of the notary, to be delivered by him to the vendors, upon the written order and consent of the vendee. This order was soon after furnished to Mar
      
      guerite and C. B. Lecarpentier, who received their full share in the price, but refused to Francois J. Lecarpentier, on account of the general mortgage against him..
    We thereupon caused a notarial receipt to be prepared, in which F. J. Leearpentier, in his own name, and as tutor of his minor son, gives a full and complete acquittance of the portion of the price still remaining in the hands of the notary, and called upon Mrs. Samory to accept this receipt, and give us the written order agreed upon in the act of sale.
    This, however, she refused to do, and thus compelled us to bring her into court, by a rule to show cause. That rule came on for trial, and was dismissed by the court, upon the ground that the general mortgage against F. J. Lecarpentier still existed on his share in the property, notwithstanding the judicial sale thereof, and would continue to exist until superseded by a special mortgage furnished according to the requirements of the law. From this decision the present appeal is taken; and we contend that the rule should have been made absolute, upon the following grounds, to wit: 1. That, under the judicial sale made for the purpose of' effecting a partition amongst the co-proprietors, the property has passed to the purchaser, free and disencumbered, upon her satisfying the claims of those creditors who had a mortgage upon it. Union Bank v. Marin, 3d Ann. 34. 2. That the creditor in this case being a minor, his tutor had the right to receive that portion of the price to which his mortgage attaches, and that payment to him, as tutor, is good and valid, and would fully and completely exonerate the vendee from all liability in the premises. C. C. 2136.
    
      C. Maurian, for the defendant,
    contended : 1. We deny that under the judicial sale relied on, although made for the purpose of effecting a partition, the appellee acquired the property free and disencumbered ; and we say, 1st. The partition was ordered by a judgment rendered by consent. Now, this honorable court, in the case of the Union Bank of Louisiana v. Marin, 3d Ann. 35, have clearly laid down, that “ consent decrees decide nothing, they merely authenticate private agreements,” and thus, the position we took in our answer to the rule, that the judgment did add nothing to the rights which the parties would have had without it, to make an amicable partition, and that, therefore, it did not raise the mortgage more than an amicable partition could have done. 2d. The view which your honors took of the statute of 1843, in the case just cited, and which is copied in appellant’s brief, has been, we think, justly attributed by the judge á quo to either a misprint, or a misreading of that statute; and the part of that decision upon which the appellant’s counsel most particularly relies, to wit, that in which it is said : “ But they were sold at public sale and by an express provision of law, the mortgage attaches to the proceeds— acts of 1843, p. 44 — was evidently founded in error; for the statute referred to contains no express provision of the kind. This is even admitted by the counsel of the appellant, who endeavors to make out by implication that which he conld not establish by express provision. Hence, he has, with his usual ability, commented upon the proviso of the second section of the act of 1843 in question; but we apprehend, that by an attentive reading of his remarks, taken together with that proviso itself, your honors will see that he has made out our own case, probably much better than we could pretend to do it ourselves. Nay, we might, perhaps, safely admit the law to be, that the mortgage attaches to the proceeds, and still it would not follow that such proceeds should remain in the hands of the mortgagor. 3d. We certainly admit fully the principle, that no one can be forced to remain in indivisión, and that that principle is one of public right and policy; but our friend and adversary will also admit, we trust, that the laws made for the protection of minors, are of no inferior grade ; and, in direct opposition to his assertion, that mortgage is not of the essence of tutorship, we say that it is, wherever the tutor has mortgageable property ; and that, although a natural tutor, who, it is true, is not bound to give security, and who should not possess one cent’s worth of property, could have a right to receive money accruing or belonging to his ward, it does by no means follow, that when such a tutor has property, a mortgage does not attach to it, and that it is in his power to get r’id of it without securing by other means the rights of his ward.
    2. We shall say but little on the second point made by the appellant, we think it does not touch the question now before your honors. It may be conceded, that a tutor, and especially a natural tutor, has generally the right to receive monies belonging to his ward, (although in the decision of the case of Foley v. Dufour, 17 L. R. 522, and some others, we might find, that the afcquittance of a tutor does not always operate as a discharge,) but we only contend that he has no right to destroy the mortgage which exists in favor of his ward, on his own property, unless he replaces it by some other equivalent security.
    The appellee in this case does not seek to avoid payment. Indeed, the funds have actually been paid by her, and remain deposited in the hands of the notary. Her only object is, to obtain a good title, and to be sheltered against future claims on the part of the minor. Now, the whole question reduces itself to this : Mr. Lecarpentier being the tutor of his son, and possessing no other property than that which has been sold to the appellee, his son having rights in the succession of his mother, and in that of his grand-father, the amount of which rights is not even ascertained to this day, (as is admitted on record,) would Mrs. Samory, the appellee, be protected against any future claim of the minor, on the property by her purchased, were she to pay the purchase money to the tutor, and would that property be for ever clear of the minor’s mortgage 1 If yea, the judgment of the court below may be reversed ; if no, we respectfully contend that it ought to be affirmed. We will not close these remarks without calling the serious attention of your honors upon the consequences which the decision of this case may have on the security of property in this State.
   The judgment of the court was pronounced by

Rost, J.

We are of opinion, that the sale in this case having been made under a consent decree, the partition has not the character of a judicial partition. In all judicial partitions, the fact that the property cannot be conveniently divided in kind must be made to appear by a report of experts. Placencia’s heirs v. Placencia et als. 8 L. R. 576.

In this case no experts were appointed, and no evidence of that fact was adduced. It does not necessarily follow, from the fact that the property consisted of a house and lot, that it could not be divided in kind. The buildings may have been of little value, and the location such as to render a sub-division advantageous to the parties. Had the licitation been in all respects lawful, the property would not have passed in the hands of the purchaser free from the legal mortgage, which affected the share of one of the joint owners. The act of 1843 relied on by the plaintiffs, is not applicable to licitations under which the property is adjudicated to a party having previously no interest in it. Such an adjudication is not, in legal intendment, a partition. It is a sale., and does not affect the rights of mortgage creditors. Any intimation of this court to the contrary, must have originated in a mis-reading of the act of 1843.

The difficulty which prevents F. J. Lecarpentier, the plaintiff in the rule, from receiving his share of the proceeds of the sale of the .common property, may be obviated in three ways. 1st. By giving the defendant .satisfactory security to indemnify her against the mortgage ; 2d. By causing his share to be invested in real estate, under the supervision of the court, and the advice of a family meeting, and giving a special mortgage on the property thus purchased under the provisions of the act of 1831; or, finally, by agreeing with the defendant, that she will retain the amount until the majority of the minors, on paying a stipulated rate of interest. Leaving the plaintiff the choice of means, we will simply affirm the judgment, dismissing the rule,

The judgment is affirmed.  