
    (38 South. 20.)
    No. 15,318.
    Succession of DELANEUVILLE et al. v. DUHÉ et al.
    
    (Jan. 16, 1905.)
    ADMINISTRATOR OF SUCCESSION — RECOVERS OF ASSETS — SALE OF LAND — ACTION TO RESCIND — TENDER.
    1. Where a succession owes debts, and the heirs do not come forward and offer to pay them, it is the duty of the administrator to recover the assets, and reduce them to cash for that purpose.
    2. Where it appears that the decedent has made a sale of real property to one of his heirs, and has received in payment of the price a promissory note secured by mortgage, which note is past due and wholly unpaid, the administrator may proceed alone to enforce the resolutory condition of the contract, or to enforce the mortgage and the payment of the note, as may seem to him best, in the interest of the creditors. And in such case no question arises as to the divisibility or indivisibility of either the right of action to rescind the contract or of the mortgage, since primarily both belong wholly to the succession, and are to be administered for the benefit of the creditors. Nor does the bringing of such suit, whether to enforce the resolutory condition or the mortgage, involve any attack upon the acts of the de cujus; on the contrary, the purpose of the suit is the enforcement of a right, written into such contracts by the law, or secured by the convention of the parties.
    3. Generally speaking, no doubt, in actions to rescind contracts of sale for nonpayment of the price, the plaintiff must tender so much of the price as may have been paid; but the rule is no broader than the reason upon which it is founded, and, where it seems likely that upon a final adjustment there will be nothing due the defendant, such tender need not be made.
    (Syllabus by the Court.)
    Certiorari to Court of Appeal, Fifth Circuit, Parish of St. John the Baptist.
    Action by the administrators of the succession of Madame Adolph Delaneuville and others against Cecile Duhé and others. Judgment for defendants was affirmed by the Court of Appeal, and plaintiffs applied for certiorari or writ of review.
    Reversed.
    Hamilton Numa Gautier and James V. Chénet, for applicants. James Legendre and Prentiss E. Edrington, for respondents.
    
      
      Rehearing denied February 13, 1905.
    
   Statement of the Oase.

MONROE, J.

This case, which is before the court for the review of a judgment rendered by the Court of Appeal for the Fifth ■Circuit, may be stated as follows:

The administrators of the succession of Madame Delaneuville, joined by a majority of the heirs of the deceased, brought suit in the district court of the parish of St. John the Baptist against the heirs of Win. DuhS, a deceased grandson of Madame Delaneuville, for the revendication of certain real estate which their ancestor had sold to DuhS in 1892 for $1,100, represented by a promissory note, secured by mortgage, etc., which it is admitted is wholly due and unpaid, and ‘Of which the plaintiffs make tender to the defendants. Quoting from the opinion of the ■Court of Appeal:

“All the grounds of the plaintiffs’ petition at first set up for the dissolution of the sale, except that of nonpayment of the purchase price, .and also the reconventional demand of the defendants, with the exceptions thereto, were formally abandoned in this court, and the case, as ■submitted to us, now stands for determination solely upon the question and the issue of nonpayment of the purchase price. The dissolution of the sale is asked for on this ground alone. The defendants meet the action at bar with the •contention that the administrators and a part ■of the heirs suing have no standing in law to revendicate the property in question, for the following reasons.”

The court then states the reasons relied on by the defendants, which may be briefly restated as follows: (1) That the widow Delaneuville recognized the sale which is now attacked; (2) that the heirs of William Duhé have been sent into possession of the property; (3) that the plaintiffs have not tendered the interest, taxes, and benefits received; (4) that “the suit to rescind is not brought by all the heirs of Widow Delaneuville, and un■der these conditions restitution in integrum cannot take place, for the reason that a part •of the mortgage cannot be tendered, because, the mortgage being indivisible, the heirs suing cannot tender the share of their coheirs held in indivisión. Like the mortgage, the action to rescind the same is indivisible”; (5) “that administrators have no standing in couit to rescind a sale for nonpayment of the purchase price, this right being personal to the heirs, and does not pass to the creditors.” Proceeding with their opinion, our learned Brethren of the Court of Appeal say:

“The administrator represents the creditors. He must collect the debts of the succession, pay what it legally owes, and turn over the residue to the heirs. In pursuit of his duty as administrator, he may bring the action of revendication against third parties who hold property of the succession otherwise than by regular title from the decedent, but he cannot question the deliberate and fully recognized contracts of the decedent whom he represents. In the suit at bar the proof shows that the widow Delaneuville has never questioned the contract of sale attacked in the present proceeding. Per contra, she has recognized the same by suing for the interest on the note representing the purchase price of said sale. Under the testimony, the amount called for in the note is about the value of the property in question, and the plain duty of the administrators is to sue on the note, foreclose the mortgage, and have the property sold to satisfy same, dealing with the proceeds in the due course of administration and as the law directs. The plaintiffs’ action to rescind cannot be maintained. We reserve to them the action on the mortgage note representing the price of the sale.”

The record sent up contains a copy of a petition filed by Widow Delaneuville in the district court for the parish of- St. John the Baptist in October, 1900, in which the petitioner alleges the sale of the property, the nonpayment of the price, the death of the vendee, Duhé, and the fact that he had left as his heirs a sister of the full bloód and a brother and sister of the half blood (herein made defendants), and further alleges “that petitioner desires to institute a suit for the rescission of said sale; * * * that previous to the institution of said suit petitioner desires to make due demand on said heirs for the payment of the interest portion of the price,” and, one of the heirs being a minor, that a curator ad hoc be appointed to represent him; and the petition concludes with a prayer that a curator ad hoc be appointed, which was done. The petitioner died very shortly afterwards, and in February, 1901, Emile Delaneuville, presented a petition to the district court, alleging that he is a grandson, that the succession owes debts, and that an administration is necessary, and praying to be appointed administrator. To this application oppositions were filed upon the ground, among others, that the succession owed no debts. In adjudicating upon the controversy thus presented the judge of the district court said:

“It is necessary that this succession should be represented by an administrator. There are claims to be collected, as shown by the inventory ; litigious rights to be settled between the heirs, some of whom are minors; there are debts against the succession; and both the heirs of age and the creditors now demand an administration, which the court cannot refuse, owing to the conditions existing, and in order to preserve the rights of all parties concerned.”

There was also an opposition to the homologation of the inventory, concerning which the learned judge said:

“The clerk has inventoried the only property which he found belonging to this succession [being the unpaid note given by Buhé for the purchase price of the property here in question, and credits and movables to the value of $162.90], and his proees verbal must be approved, reserving to all the parties in interest the right to attack the sale complained of.”

And for the reasons given the application of Emile Delaneuville was rejected, and Mrs. Eugenie Delaneuville, wife of Dr. Charles Mermilliod, and her husband, were appointed administrators, and the inventory which had been taken was homologated, with the reservation stated. Thereafter, and when the present suit was filed, the presiding judge of the district court recused himself by reason of the fact that he had, as a member of the bar, given some advice to one or more of the parties in interest, and a judge ad hoc was appointed, by whom a judgment was rendered in favor of the defendants, which, as we have seen, was affirmed by the Court of Appeal. It may be here remarked that all of the heirs of the vendor are parties to this suit, ‘either as plaintiffs or defendants, and that in all probability the succession is insolvent.

Opinion.

Counsel for defendants begin their brief as follows:

“Into this court come Cecile DukS et ais., and except to petitioner’s demand for a writ of review herein, and say that petitioners, in December, 1903, appealed to this honorable court from the judgment of the district court in this cause, subsequently affirmed by the Court of Appeal, as shown by the record. Under the circumstances the case should be reviewed on appeal by this honorable court, and not under writs of certiorari and review.”

The answer to this would seem to be that it is the judgment of the Court of Appeal that has been brought up for review, and, if that judgment was rendered in a case which was then pending in this court, that circumstance would of itself be a sufficient ground for the exercise of the jurisdiction here invoked. We’ imagine, however, that it was found that the amount involved was insufficient to sustain an appeal to this court, and hence the appeal was taken to the Court of Appeal, where, without objection, the case was argued, submitted, and finally decided. Under these circumstances the proposition that it should now be considered in this court as on appeal from the district court is untenable.

On the Merits.

Succession is the transmission of the rights and obligations of the deceased to his heirs; and it signifies also the estates, rights, and charges, which a person leaves after his death, whether the charges exceed the property, or the property exceeds the charges, or there be nothing left but charges; and it includes, not only the rights and obligations of the deceased, as they exist at the time of his death, but all that has accrued thereto since the opening of the succession, as, also, the new charges to which it becomes subject. Civ. Code, arts. 871, 872, 873. The succession of Widow Delaneuville consisted, and now consists, upon the one hand, of certain debts, and, upon the other hand, almost entirely of the rights reserved or accruing under the contract of sale which has been made the subject of this litigation. Those rights were and are to sue for the dissolution of the contract, w-ith damages in the event of the nonpayment of the price at which the sale was made, or to enforce the payment of such price. Civ. Code, art. 2046. And, there being debts to be paid, and no other source from which the funds necessary for that purpose can be derived, it was and is the duty of the administrators to reduce these rights to cash, and with the cash so obtained to pay the debts; the heirs, unless they choose to come forward and pay such debts themselves, having no real interest in the succession until that has been accomplished. Civ. Code, art. 1058; Ingram v. Laroussini, 50 La. Ann. 69, 78, 23 South. 498. There is no question here of the divisibility or nondivisibility of the mortgage or of the action to dissolve the sale, since the whole mortgage and the whole right of action (the enforcement of the former to be exercised as an alternative to the latter) belong to the succession, and are to be administered for the benefit, primarily, of the creditors.

“An administrator is the trustee of the creditors ; his first duty is to them ; he is bound to watch over their interest.” Succession of Harkins, 2 La. Ann. 923; Richard v. Ouviere, 10 La. Ann. 723; Succession of Jacob Weigel, 21 La. Ann. 149. “The administrator of an insolvent succession represents the creditors, and not the deceased ; and may maintain, for their benefit, an action, which the deceased, were he alive, could not for his own.” Judson v. Connolly, 4 La. Ann. 169. “An administrator has a right to collect all succession claims, which, when paid, will be assets in his hands to meet the debts.” Dunbar v. Thomas, 14 La. 332. “Where one with a claim against government dies before the passage of a law providing for its payment, the fund so created forms part of his succession, and is liable, in his executors’ hands, for his debts, free from which his heirs-cannot claim it.” Hall v. Emerson, 11 La. 10.

This suit, as brought, has for its purpose the enforcement of a condition written by law into a contract made by the decedent, which, prior to her death, she had judicially declared that she intended to enforce; and it no more involves an attack upon any act of hers than would a 'proceeding to enforce the alternative remedy contemplated by that contract, to wit, a specific performance on the part of the vendee by payment of the purchase price of the property sold. There was no reason, therefore, why the administrators alone should not have brought the suit. In fact, believing, as they did, that it was to the advantage of the creditors that such a suit should be brought, rather than an action to recover the price of the property, it would have been their duty to have brought it, whether the heirs agreed to it or not; and the fact that a majority of the heirs joined them as plaintiffs does not deprive it of its character as a suit brought by the administrators to recover, and reduce to cash, for the benefit of the creditors, an asset belonging to the succession; Referring to the authority of administrators to stand in judgment for the purposes of suits affecting title to real estate, this court has said:

“With regard to exequtors article 123 of the Code of Practice especially provides that real actions cannot be brought against them without making the heirs parties; from which it is inferred that a like rule applies to real actions brought by them, though this is not settled as to all cases. But, if it had been intended that the same rule should appljr to administrators, it is strange that it should not have been so expressly provided. On the contrary, article 122 provides that all kinds of actions may be brought against curators of vacant successions. * * * Now, when we read in article 1049 of the Civil Code that ‘administrators have the same powers and are subject to the same duties as the curators of vacant successions,’ we naturally assimilate their rights to sue and to be sued to those possessed by such curators, rather than to those possessed by executors. Besides, article 1058 of the Civil Code requires administrators to settle all the affairs of the succession, and, after payment of the debts, to pay over the surplus to the heirs. This implies the right and duty to recover the property, as much as to collect the debts, of the succession. It is not for him, it is " true, to assail the validity of acts done by the decedent, unless necessary for the protection of creditors; and, if he have already settled all the debts and charges of the succession, it is improper for him to institute such actions, because the objects of the agency have been fulfilled, and he should give way to the heirs, who are the only persons interested, and may assert their own rights. But certainly, so . long as the debts are unpaid, and the affairs of the succession are unsettled, if he discovers property belonging to the succession held by adverse title, not derived from the act of decedent, it is his duty to reclaim it, and he has the right to sue for it, without joining the heirs.” Woodward v. Thomas et al., 38 La. Ann. 242, 243.

To argue that a suit to enforce a condition in a contract of sale, whereby the right is reserved to the vendor to reclaim the property in the event of the failure of the vendee to pay the price, is an attack upon an act of the vendor, is merely to confuse a plain proposition. Generally speaking, no doubt, in actions of this character there should be a tender by the plaintiff of so much of the purchase price as he may have received; but the rule is no broader than the reason upon which it is founded, and is not of universal application; the most that a vendee in such a case is entitled to being that, as a condition to the dissolution of the contract, he should be made whole with respect to his disbursements. In the instant case it is not pretended that any part of the principal of the note given by the vendee in liquidation of the purchase price of the property has been paid. The taxes were to be paid from the rental of a certain portion of the property which the vendor reserved to herself, and the plaintiffs in their petition deny that any interest was paid, and allege that the indorsements showing such payments for the years 1892, 1893, and 1894 were fraudulently made. They allege, moreover, that the amount due by the defendants for the use of the property far exceeds the disbursements made. Under these circumstances the tender of interest and taxes could not reasonably have been expected. Ware v. Berlin, 43 La. Ann. 534, 9 South. 490.

It is therefore ordered, adjudged, and decreed that the judgments herein rendered by the district court and the Court of Appeal be annulled, avoided, and reversed; that the notarial contract of sale from Mrs. Widow Delaneuville to William Dube of date January 28, 1892, be now resolved and set aside, and the property which was the subject, thereof decreed to belong to the succession of said vendor; that the rights of the defendants with respect to disbursements made under said contract, and of the succession with respect to the use and enjoyment of the property, be reserved; and that this case be remanded to the district court, to be there proceeded with in accordance with the views herein expressed; the defendants in said suit to pay the costs of. this proceeding.  