
    No. 10,482.
    Mrs. Mary C. Duruty and Husband vs. Anthony Musacchia.
    Tile presumption of law that property bought during marriage in the name of either spouse attaches to purchases in the name of the wife, although the act contains all necessary recitals as to the paraphernality of the funds with which the price was paid.
    A purchaser from a married woman can not be compelled to accept title until this presumption has been overcome by proper proof, and when it appears that a judicial mortgage is recorded against the husband, the purchaser may require such mortgage creditor to be made a party.
    If the mortgage creditor be an absentee, he may be properly brought into court through a curator ad hoc, the proceeding being substantially one in rem, having for its sole object to fix the status of the property, and to determine the validity of his apparent lien upon it in ordor to enforce a contract respecting the same.
    A judgment against a non-resident, properly represented in a litigation by a curator ad hoc, involving the effect of a judicial mortgage inscription on real estate in this State, ought to be explicit on its face of that effect, to bind the absentee.
    The Act of 1878, authorizing the sale of property owned in part by minors at private sale, does not require the fulfilment of the prerequisites for a judgment in partition at public auction of property, in which minors are concerned as co-owners.
    
      The consent o£ the co-proprietor of age, and that of a family meeting on behalf of the minors, with the concurrence of the tutor and the homologation of the proceedings by the court, authorize the sale of the property at private sale.
    Interest exceeding five per cent can not be allowed on a sum actually due, in the absence of written evidence of an agreement to pay such.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.
    
    
      ■J. C. Gilmore and S. L. Gilmore for Plaintiffs and Appellees:
    A sale of separate and paraphernal property of the wife acquired during marriage, will be enforced when it is incontrovertibly established in a suit against the purchaser, that it was purchased with her separate and paraphernal funds, of which she retained the administration free from the control of her husband. The purchaser must submit to this proof and accept the title if unobjectionable. Bachino vs. Coste, 35 An. 570, and authorities cited; Sentamant vs. Soule, 33 An. 609.
    A mortgage creditor of the husband is not a necessary party in the controversy, but when an absentee, and made party by supplemental petition, and represented by a curator ad hoe, will be concluded as to any interest in the issue. 32 An. 313; Stockmeyer vs. Weidner, 32 An. 10G, etc.
    A private sale of succession property in which minors and majors are interested, under the provisions of Act 25 of 1878, page 17, will be upheld, and need not be preceded by a formal judgment and decree provided for in ordinary partition proceedings. Act 25 of 1878, page 17; E. S., Sec. 2667; Durand vs. Dubuclet, 25 An. 155.
    The purchaser is not chargeable with the subsequent disposition of the proceeds or personal rights of the minors against their tutor growing, out of the tutorship. Sadler xs. Henderson, 35 An. 826; Taylor’s Digest, pages 517, 518.
    
      Buck, Dinkelspiel & Hart for Defendant and Appellant:
    I. Property belonging to minors, as a rule, can only bo sold at public auction. E. C. C. 310-312.
    To effect a partition it may be sold at private sale. Acts of 1878,17 ; 21 An. 155.
    3. Property sold to effect a partition can only be sold when the provisions of law regarding partitions are strictly complied with, and when there is a formal judgment of partition. 10 An. 571; 11 An. 33; O. B. 27, folio 210.
    ■3. A purchaser of real estate, from a married woman, can not be compelled to accept title thereto, without there being a separation of property between the spouses, where tho community owes debts, and there are judgments.recorded against the husband, unless the creditors of the husband are made parties to the proceedings. 35 An. 570.
    1. An absentee can not be brought into court through the appointment of a curator ad hoe, except in certain enumerated cases, among which the one above mentioned is not embraced. 35 An. 1181; 95 U. S. 711.
   The opinion of the court was delivered by

Fenner, J.

The plaintiff, a married woman, with the authorization of her husband, sold to the defendanta piece of property, of which he refused to accept the title tendered, on the following grounds:

1. That the property having been purchased by Mrs. Durruty during marriage, although bought in her name and although the act fully declares that it was bought with her separate funds, is presumed to be community property, and that he can not be compelled to take the title until that presumption is judicially rebutted.

Our decision in Bachino vs. Coste, 35 An. 570, certainly imposes upon the married woman, in such case, the duty, and upon the purchaser from her the right to require her, to rebut this presumption, and to rebut it contradictorily with those having a right to dispute her title, such as the forced heirs of the husband, if he be dead, and his judicial mortgage creditors.

In this case, a certificate of mortgage in the husband’s name was produced, showing a judicial mortgage for a large amount, recorded in the name of Leon Hernandez, who, it was shown, was an absentee residing in Prance.

Thereupon, a petition was filed making him a party, and appointing a curator ad hoc to represent him, who appeared and filed answer in that capacity and represented him on the trial.

It is not disputed that the proof administered by Mrs. Durruty clearly and conclusively established every fact essential to maintain the paraphernality of her title and her full right to sell; but defendant claims that the judgment to that effect is not binding on Hernandez, because he was not legally made a party, and that the attempt to make him a party by substituted service on the curator ad hoc, was not “due process of law.”

Reference is made to the decision of this court in Loughlin vs. Ice Company, 35 An. 1184, and to the decision of the United States Supreme Court in Pennoyer vs. Neff, 95 U. S. 714, and sundry other cases.

An examination of those decisions very clearly shows that this case is an exception to the general rule formulated therein, which applies only to actions strictly in personam.

Thus Justice Field, as the organ of the court, expressly says: “ Such service may be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or when the public is a party, to condemn and appropriate it for a public purpose. In. other words, such service may answer in all actions which are substantially proceedings in rent. But where the entire object of the action is to determine the personal rights and obligations of the parties, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose.” Pennoyer vs. Neff, 95 U. S. 727.

It is obvious, in this case, that the sole object of the proceedings, as against Hernandez, is to define the status of this property, to determine the validity of his apparent lien upon it, in order to enforce a contract respecting the same. He can not be reached for personal service, and unless he could be brought in by such substituted service, his mere absence would have the effect to place and to keep this property out of commerce. We therefore hold that he was validly brought into court through service on the curator, and will be concluded by the judgment.

The character and responsibility of the gentleman appointed as curator forbid our attaching the slightest importance to the suggestion that he has neglected any duty due to his client. Although his answer was filed soon after his appointment, it may well be inferred that he had communicated with the absentee and was advised of his wishes, without which he would not have so acted; and in every event, he is amply responsible.

2. Defendant further objects to the validity of Mrs. Durruty’s title, because derived in part from minors whose title was divested by proceedings conforming to the requirements of law. It was a private sale made to effect a partition under the special provisions of Act No. 25 of 1878. We have critically examined the proceedings and .find them to conform in every respect with the requirements of the act.

The casé of Succession of Dumestre, 40 An. 571, did not involve proceedings under or purporting to be under this act, and has no application here.

The suggestion of defects in further proceedings in course of the partition after the sale to Mrs. Durruty, and her full compliance with the terms thereof, brings up matters with which neither she nor defendant have the slightest concern.

We consider that the decree of the court properly adjusts the rights of the parties as to the interest on the price. Defendant was not in default for non-payment of the cash portion of the price until the date of the judgment, and therefore owes interest from that date only. As the act stipulated 7 per cent, as the rate of interest on deferred payments, it is but just that he should pay that rate on the cash portion from the date of his default.

Mrs. Durruty died during the pendency of the suit and her heirs were regularly made parties in her stead; but by oversight the judgment was rendered in the name of Mrs. Durruty. It is agreed by all parties that this clerical error shall be corrected in our decree.

It is therefore adjudged and decreed that the judgment appealed from be amended by substituting the names of Louise Marie Durruty and Marie Ursule Durruty as plaintiffs in the judgment for that of Mrs. M. O. Durruty, and that as thus amended the same be now affirmed at appellant’s costs.

On Application for Rehearing.

Bermudez, O. J.

The defendant complains that there is error in the judgment herein rendered in this:

That if it be true that the judgment binds Hernandez, made a party, it ought to show that fact expressly.

That the formalities for the transfer of the property, as required by law, have not been observed, so as to bind the minors, from whom it in part derived.

That the judgment allows seven per cent, on the portion of the price which was to have been paid cash, while it could allow the legal interest only, as there was no consent to pay more.

I.

The ruling in Flower’s case, 23 How. 132, has no bearing in the instant ease, and Hernandez is surely bound by the judgment against him, represented by a curator ad hoe, to the effect that his judgment against Durruty, the husband, does not affect the property of Mrs. Durruty, the wife.

The District Court, however, ought to have made a decree in its judgment affecting Hernandez, and, as it has not done so, the omission can be supplied here. Otherwise, in orderto ascertain what the effect of the judgment here is, it would be necessary to consult the. reasons which do not form part of the decree.

II.

We held that the formalities for the sale of the property of minors at private sale had been observed, and deemed that statement sufficient to determine the issue on that point.

In the case of Boesch vs. Association, decided this day, in which thé proceeding was a kindred one, we again hold, that a sale of property, of which minors are part owners, can take place without being preceded by a formal judgment, as is provided for in partition suits for a sale at public auction.

It is enough, where the co-proprietors agree, that the family meeting And the necessity or propriety of the sale advantageous to the minors, and that, with the concurrence of the tutor, the court homologate the deliberations and order the sale, for the price fixed by the family meeting.

in.

The District Court erred in compelling the defendant to pay seven per cent, interest on the cash instalment. In the absence of any written evidence of an agreement, the defendant can be made to pay legal interest only. R. C. O. 1940, 2924.

It is therefore ordered that our previous decree herein be amended iso as to read as follows:

•It is ordered and decreed that the judgment appealed from be amended by reducing the interest on the cash portion from seven to five per cent., and by declaring that the judgment of Leon Hernandez against Jean Honoré Durruty, for $18,750, on the 1st of June, 1886, in the United States Court, does not affect the property described in the petition and forming the object of this suit; and that thus amended, the judgment appealed from be affirmed at appellee’s cost; and it is further ordered that our previous decree thus modified remain undisturbed.  