
    Benjamin Poydras de Lallande et als. v. Francoise Poydras de Lallande et als.
    The rule, “ Quce temporalia sunt ad agendum perpetua ad excipiendum,” applied in answer to the plea of prescription setup by co-proprietors.
    from the District Court of the Parish of Pointe Coupee, Farrar, J.
    
      L. Jannin, for plaintiff.
    
      Mioou & Pronosty, for defendant and appellant.
   Ogden, J.

The plaintiffs and the defendants were joint owners of the Chenal plantation, purchased in 1825 at the succession sale of Julien Poydras. Julien Poydras constituted his nephews and nieces, twelve in number, the universal legatees of his immense estate. The defendants were his nieces, five in number ; and the plaintiff, Benjamin Poydras, was a nephew, and the brother of the defendants. The plantation in question was adjudicated to Benjamin Poy-dras and his five sisters for $50,000, payable in five annual instalments. Guy Richan'd, who was a cousin of Benjamin Poydras and his sisters, became interested in the purchase of the plantation, for an equal share, so that each owned an interest of one seventh, and were all equally bound for the payment of the price. Benjamin Poydras held the power of attorney of his five sisters, defendants in this suit, and of the other heirs residing in Prance; and in his own right, and as agent of his co-heirs, he received possession from the executors, of the whole succession of his uncle, including the notes given by himself and his sisters for the price of the Chenal plantation.

This suit was instituted in 1848 by Benjamin Poydras and the representatives of Guy Richard, to effect a partition of the property, and by consent of parties a sale was decreed for that purpose.

The defendants having, by a demand in reconvention, obtained an account from Benjamin Poydras of profits and revenues of the property from the time of the purchase in 1825 until the sale in 1829, filed an opposition to the account, and have taken this appeal from a judgment rendered thereon. The appellants have complained, in this court, of error in the judgment appealed from, only as regards four items of their opposition.

The first item is the charge which Benjamin Poydras has made of the price of the plantation, as paid by him in four annual instalments, with the interest accumulated thereon. The grounds of objection to this charge are, that the price o'f the property is not a proper item in the account of the revenues, and that the dpmand ;s barred by prescription. The notes which Benjamin Poy-dras and his sisters had executed for the price of the plantation were surrendered up to him as the agent of all the heirs of Julien Poydras. The estate •was -a very large one, and' these notes constituted but a small portion of the assets realized by the sale of the property, of which Benjamin Poydras owed an account as agent not only for his sisters, who had joined him in this purchase, but to the other heirs, all of whom resided in Prance. In 1844, Benjamin Poy-■dras rendered an account of his agency to his co-legatees, in a suit before a tribunal-in Prance, to which all the heirs were parties, and in that account debited himself with $50,000, as the price of the Chenal plantation. As only five out ■of eleven of his co-heirs were interested in the settlement of his accounts of the Chenal plantation, and the representatives of Guy Richa/rd, as owning one-se-Tenth of that plantation, were also necessary parties, — the rights of those heirs having a separate interest growing out of the purchase by them jointly of that particular plantation, and of its administration by Benjamin Poydras, were expressly reserved for future settlement in Louisiana, where the property was situated. It was necessary, however, that the price of the Chenal plantation should be embraced in the general account which was the subject of litigation in the suit to which all the heirs were parties in Prance, and, with the above reservation, the price was accounted for in the settlement. After a very protracted litigation, and after the death of Benjamin Poydras, a final judgment was rendered by the Court of Appeals at Rennes, establishing a large amount to be due to Benjamin Poydras by his co-legatees. As the defendants in this suit themselves owed five-sevenths of the price of the Chenal plantation,- which was thus accounted for by Benjamin Poydras in his general settlement w’ith all the heirs, the defendants must be considered as having received their portion of the price of the Chenal plantation. And, in accounting for the revenues of the plantation, Benjamin Poydras had the right to compensate the claim of his sisters for the revenues by their portion of the price of the plantation, for which he made himself responsible when he accepted a surrender from the executors of the -whole estate of his uncle, to himself, as agent of all the heirs.

The maxim, “ Quce temporalia sunt ad agendum perpetua sunt ad exeipien-dum,” would under such circumstances prevent his co-proprietors from availing themselves of prescription. Nichols v. Hanse & Hepp, 2 L. R. 385; Delahousaye v. Dumartrait, 16 L. R. 91. He had the same right to reimburse himself out of the revenues of the plantation for the price of it, for which ho made himself responsible and subsequently accounted, as if the notes had in fact been taken up by him at maturity. When one partner, who has the management of the partnership property, pays an obligation for which all the partners are equally bound, he has a right, in settlement of accounts with bis co-partners, to credit himself with such payment, and prescription cannot run as long as the account of his administration is unsettled.

The appellees have argned that there was nothing to prevent Benjamin Poy-dras from suing his co-partners for their portion of the price, and that the maxim, uOontra non raientem agere non aurrit prescript™,” does not, therefore, apply. It may be conceded that the rule which is generally recognized, that no action will lie by one partner against another, except for a final settlement, would not have been applicable to prevent Benjamin Poydras from bringing a suit in such a case as this. We consider, however, that the plea of prescription cannot be maintained on account of the relation between the parties, which made it equitable and just that their mutual claims should be brought into a general settlement of the partnership accounts, and which it must be presumed was their intention by their postponing a settlement for so long a period. The plea of prescription cannot therefore avail the defendants, who were properly charged in the settlement with their proportion of th'e whole price debited to Benjamin Poydras, in the account rendered by him to all the heirs in Erance.

2. The charge for extra services allowed to Stephen Vanwiclcle, who was left in charge of the plantation as agent, forms the next ground of opposition, concerning which, error in the judgment appealed from is complained of. This presents only a question of fact; and, after examining the evidence, we are not satisfied that the allowance of $1804, for extra services, was unreasonable. It became necessary during Vanwiclcle's administration to make a great many improvements which required the employment and superintendence of numerous mechanics; and, considering the nature and amount of services rendered by him during the absence from the country of all of the proprietors, the objection to this charge does not seem well founded.

3. The opposition to the item in the account for amount paid to Vdnwickle for the costs and expenses, and a fine imposed on him for an assault and battery, committed while searching for runaway negroes belonging to the plantation, we think, ought to have been sustained. This did not constitute a proper charge against the proprietors of the plantation ; it was an act of liberality on the part of Benjamin Poydras to allow it — but, as his co-partners have objected to it, he is not entitled to be credited with the amount thus paid.

4. The fourth and last objection made to allowing the heirs of Guy Richard a proportion of the price of the property, on account of the two co-parts first embraced in the sale, which belonged to them separately, and also rent for the same, was, in our opinion, properly overruled. The evidence shows that by an oversight, this land was sold with the rest of the plantation which was common property. There is no question as to the title, and the only mode of correcting the error, as the heirs of Richard were willing to ratify the sale, was to make an equitable partition of the proceeds of the sale, which seems to have been done; and for the use of their land by the partnership, they were entitled to rent.

It is, therefore, ordered and adjudged that the judgment of the court below be avoided as regards the twelfth item of the opposition to Benjamin Poydras’ accounts for the amount of three hundred dollars paid to Stephen Yanmekle, and that the opposition to that charge be sustained. It is further ordered and decreed that the judgment of the court below, in all other respects, be affirmed, and that the appellees pay the costs of this appeal.

Spoitobd, J., did not sit in this case.  