THORNTON vs. MANSKER, 10 La. 121

Bullard, J. delivered the opinion of the court. The. plaintiff alleges that the defendant was appointed curator of one Willis Thornton, an absentee, who was his debtor in a sum of upwards of two thousand dollars, and who left a large plantation and some slaves in the parish of East Baton Rouge, to be administered by the defendant. That he had obtained a judgment against the absentee by regular proceedings against his curator.

He alleges that an execution was issued on his judgment, and the defendant answered that no funds, right, or credit in his hands, nor any' property moveable or immoveable, except such as were subject to liens and privileges superior to his. He avers that if such be the fact, it is because the defendant has illegally disposed of, and wasted the property confided to his care, and has made himself personally liable to pay his judgment.

The defendant, after setting up an exception to the jurisdiction of the District Court, which was overruled and not now insisted on, filed an answer to the merits, in which he admits that he was appointed and acted as curator of the absentee; but he alleges, that he was afterwards duly appointed administrator of the succession of Louisa Thornton, the wife of the absentee; that all the property mentioned in the plaintiff’s petition belonged to the community of acquests and gains existing between Thornton and his wife, and subject to the payment of the community debts, that the community was deeply in debt, and, indeed, insolvent.

He further alleges, that as administrator of Louisa Thornton’s estate, he provoked a meeting of the creditors of said Louisa and her husband, to deliberate upon the necessity and propriety of selling the common property, and to determine the terms of sale. That a meeting of the creditors was held, and it was determined to sell the property on credit. That their proceedings were duly homologated by the Probate Court, and that in pursuance of a decree of said court, the whole property was sold.

The defendant further avers, that if those proceedings were illegal and null, which he denies, such illegality or nullity can only be shown by an action of nullity, or by appeal to the Supreme Court. He denies the authority of the District Court to revise, modify or annul any judgment or decree of the Court of Probates.

He further avers, that if these proceedings were irregular and illegal, such illegality is not imputable to him, he having in all his actings and doings conformed to the advice of his counsel, and to the orders and decrees of the Court of Probates, having jurisdiction of the premises. ,°f the absent husband is appointed admin-succession of the deceased wife, and in his latter capacity provo-creditorsfanl °a ^of the whole of thecommuni-%eu, thaUieasl ¡“insistent with h.is, duties in either character, and thereby ren-personsdiyiTaMe *° * creditor of the husband, who was thereby pre-on™this ™ j®* judgment.

The substantial facts alleged, both in the petition and answer, are -proved. It appears that the absentee, Willis Thornton, was still alive when his wife died, and for aught that appears, is yet living; and that the defendant continued to act as his curator. It further appears, that after the sale of all the property, at the instance of the defendant, the purchaser procured a monition under the act of 1834, and the proceedings were finally homologated by the Probate Court.

It is manifest that when the plaintiff recovered his judgment against the absentee, the defendant had under his charge, as curator, sufficient property to satisfy it, and that the same property is now beyond the reach of an execution; and the question presented in this case is, whether the defendant by mal-administration and waste, has rendered himself liable. The District Court solved this question in the negative, and this court is now called on to reverse that ° juagment. The death of Mrs.

Thornton did not in our opinion put an end to the functions of the defendant as curator of the absent husband, and he was still bound to retain and administer the property. On the death of the wife, her heirs had a right to one-half of the property composing the community, on their acceptance of it, either tacitly or expressly, subject to the payment of the debts. This gave them at most a right to have a partition between them and the surviving husband.

The debts were debts of Willis Thornton, and not the debts _ . ,. .. . _ . . i, . , of the wife until her heirs became liable, by acceptance of the community, or intermeddling with the property. Admitting that when the defendant undertook to administer on the estate of the deceased wife, he assumed to do nothing incompatible with his duties as curator of the absent husband, yet, when he in the former capacity provoked a surrender of the property, as it is called in the record, and a sale of the whole, as was done in this case, he assumed to do acts .which were inconsistent with his duties in either character.

The act of 1826, which first authorized the surrender of insolvent estates, required, that in cases where no person would assume to act as administrator under a regular appointment by the Probate Court, the creditors should be convoked to appoint J *■ syndics, by whom the succession should be administered as ^ case an ordinary cessio bonorum. 2 Moreau, 439, 3 The act of 1826 authorizing the surrender of insolvent estates, macases" where no person would assume to act as administrator appointment^11511 that ,the ere<h-tors should be convoked to ap-bywhomS£esuel be'S administered as in cases of an bmorum. . in proceedings m cases oí insolvent estates, ser-the6 attorney6 of t^e absent ergdi-dent as relates sidiCngdl<ínS the notabsTiítcredi6 tors. .

In the present case no syndics were appointed. ■ On the contrary, the whole proceedings appear to have been carned on in the name of the defendant as administrator, 7 under his appointment by the Court of Probates. If he was administrator, he was bound by law to administer the success^on according to the rules established by the Code, and nothing authorized him, in any capacity, to sell the property belonging to the absent husband. But it is contended that the court could not collaterally inquire into the validity of these proceedings of the Court of Probates, and that they must stand until annulled or reversed.

That may be true in relation to the parties and those who-may have acquired title under such proceedings; but we are at a loss to know in what sense of the word the plaintiff was a party or assented to these proceedings. He was a creditor of Willis Thornton, and had nothing to do with the succession of his wife. He appears to be a citizen of West Feliciana; and the only notice to attend the meeting of creditors for the purpose as set forth in the notice, of deliberating on the terms of sale of the property of the succession, was served on an attorney appointed to represent the absent creditors.

Creditors who live in the' state are not absent. .... . , , _ But the question in this case is not whether these proceedings he valid and legal as relates to the title of the property, but, whether the defendant, by his acts, has put it out of the power of the plaintiff to obtain payment and satisfaction of his judgment by levying on the property of the absent debtor, and has mismanaged the estate to the prejudice of plaintiff.

It has been .urged that if these proceedings are void, then nothing prevents the plaintiff from proceeding to obtain payment; for if the property of Willis Thornton has not been validly alienated, it is still his, and subject to be sold to satisfy the plaintiff’s execution. But this would make it necessary at least to proceed by action against the purchasers at the probate sale, who have already a judgment homologating all the proceedings; and it appears that the defendant as curator of the absentee, made no opposition.

We are of opinion, that the defendant having frustrated the plaintiff in the legal pursuit of his rights, cannot now be permitted to turn him round to a tedious and perhaps doubtful litigation, with persons whose title to the property is founded on proceedings provoked by himself; and that by such illegal disposition of the property of the absentee, he is liable to pay the debt in question.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed; and proceeding to render such judgment as in our opinion ought to have been given below, it is further considered and adjudged, that the plaintiff recover of the defendant the sum of two thousand and ninety-nine dollars, with five per cent, interest from the 1st day of January, 1834, and the costs of the suit of James Thornton, vs. J. Mansker, curator of Willis Thornton, together with the costs of this suit in both courts.