The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-01-12

The court think proper to notice particularly tns
facts connected with two events growing out OF
the administration, the sale Of the lessee and the
sale of the interest In the buildings; erected ~
smelser. The sale of the property of deceased
not realizing sufficient to pay debts Of the success
s;on. executrix, on goth September. 1855, applied
for ssale of lease, and obtained order therefor
next day. The 18th of December, same year,
Todd & Co., creditors OF the estate n on rue qn
for sale of property of the succession to pay tner
debt Beard, auctioneer, as directed in the orders
and, after usual advertisement, sold the lease on
the 29th December, 1855; defendant purchased it
at the price of one dollar. Executrix, November:
1857 brought suit to apnul this sale Judgment OK
nullity was rendered December 10th, 1893, and
this, with slight modification, was confirmed on
appeal to this (Supreme) Court In April, ls6o.
(See 18th Annual, page 254).
Defendant went into possession OF leased pre-
misses under sale Of December 10th, 1855, and re-
NAMED in till lease expired November 1850. as
the buildings had increased value of lease, court
awarded plintif $S04 IS, being excess IN value IN
favor of the estate over the amount 1t was bound
for to defendant under original contract. On APP
plication of Durham, creditor OF the succession,
an order of sale was rendered 9th January, 1857
and under il the only remaining asset, as 1t seems,
the interest in the buildings on defendants lots
was sold September 18th following, and Mrs. Smell
ser, the executrix, in her individual capacity be-
came the purchaser. 1t was adjudicated to her
at $1,000. and retaining IN her hands 1861 80 she
executed twelve months bond for the balances
Mrs. Kear, plaintiff, being the surety on her bond.
This bond was assigned by the sheriff to Mrs. Kel-
lar, Sept. 26th, 1851 she, as averred in argument,
having paid it. To all her rights acquired by the
sale, September 18th, 1857 Mrs. Sm9ser substitute
ed Mrs. kellar by written act, November I'D,
1858, transferring to her all the interest of the
succession in the buildings on defend lots and
subrogatiDg her "to a certain suit pending against
Mrs. Blanchard and husband, No. Is ,39l of the
Second District Court and TO all the advantages,
mn az a may IA hQd mr. ha OH ht
judgment or proceedings thereupon."
This clause in the act of transfer refers 30 the
suit then pending to annul the sale, by virtue of
which defendant had acquired title TO the unex-
pired portion of time the lease had TO run. The
ground taken by the defense is, that by none of
these proceedings did the executrix, in her indi-
vidual capacity, acquire any title to the rights
she pretends to have transferred, and conse-
quenty that the plaintiff, as her raasferee. stands
in the same attitude. 1t is argued that the pro-
ceedings were Illegal and null that the sales
under which plaintiff holds were made under writ
OF fe71 Jdcids, proceeding unknown to the law
IN the sale OF succession property that admit
ting the estate had rights against the defendant.
these rights have not been Invested. and therefore,
that the estate not being party TO this suit would
not be included by judgment rendered in favor
OF the plaintiff against the defendant, and that the
transaction between the executrix and the plain
tif was the transfer of litgioRs right, emitting
the latter 10 recover only the amount she paid IL
entitled to recover at all.
upon tnls statement OF the important facts Of
the case, on both sides, Judge Taisferro after an
examination Of the record, and an elaborate con-
sideration Of the questions involved in the inter-
esting controversy, concludes his opinion with the
following decree of the court:
:" We conclude that with some modification the
judgment Of the lower court should be maintained.
IL is therefore ordered, adjudged and decreed.
that the Judgment of the district court so far az
it DEGREES the defendant to pay the plaintiff the
sum of $500 70, with interest specified be snnulI-
ed, avoided and reversed, and that in all other
respects 1t be confirmed, reserving to the estate
in question any rights it may have against the
defendant growing out of the contract of lease.
II Is further ordered that defendant and appellant
pay the costs in the lower court the plainti and
appellee to pay costs of the appeal.n