Judson v. Connolly

The judgment of the court (Slidell J. not sitting,) was pronounced by Rost, J.

This suit is a sequel to that of Bridget Connolly et al. v. Sarah Connolly and husband, lately decided. The administrator of the insolvent succession of the late Felix Connolly, relying on the judicial declarations of the plaintiffs in that suit that the property adjudged to Budget Connolly belonged to the said succession, and was held by Sarah Connolly under a simulated sale, now aslcs that Bridget Connolly be cited, and’that said property be decreed t6 belong to the succession he represents. There was judgment by default, which, upon proof of the facts alleged in the petition, was made final, and the defendant appealed.

The opinion we have formed on the merits, renders it unnecessary to notice the bills of exception found in the record. The defendant has filed in this court several pleas of prescription, and the plaintiff waives his right to have the case remanded, under art. 902 C. P. ,

1st. It is alleged that this is a personal action; that more than ten years have elapsed since Sarah Connolly received from the syndic of Hoskins a title to tho property claimed, and that under art. 3508 C. C. the action is prescribed. 2d. It is further alleged that the debts due by the succession of Felix Connolly are evidenced by judgments rendered more than ten years before the institution of this suit, and that they are also prescribed under the same article of the Code. We have also been referred to an act passed in 1848, on the subject of prescription, providing that tho time required for it shall not be affected by absence from the State.

*170 The prayer of the petition is, that the immovable property therein 'described be decreed to belong to the succession of Felix Connolly, and that it be delivered to its administrator. This is clearly a real action, unaffected- by the prescription of ten years.

Art, 3508 provides that alb personal actions, except those previously enumerated in the Code, are prescribed by ten years. But a judgment is not a personal action, and does not come within the rule. The debts' proved are still- due, and must be sastisfied out of the property of Felix Connolly, if he had any at the time of his death.- That the properly claimed belonged to him is proved by the judicial declarations of the defendant in the former case, which are in evidence^ There is nothing in the judgment of the court in that case tending to falsify those declarations; on the contrary, itenforces a compromise entered into between the parties to the suit', as heirs of Felix Connolly, in relation to the property left by him, and, with the consent of the other heirs, adjudged to the defendant in fulT ownership that portion of it which is now claimed. The defendant'received it in right of Felix Connolly, and her title to it is by inheritance. She cannot- therefore be viewed as a third person, and the prescriptions of one, five, and ten yoarswhich she has pleaded, under arts. 1989, 3507, 3442, 3437, C. C. can no more' avail her, than they would avail Felix Connolly, if ho was alive.

The plea that the action of the pl'aíntifií to annul the Sale’cannot be maintained, because if there was fraud, Felix Connolly was a party to it, and as he would have no action himself, he could transmit none to-his representatives-, assumes that the plaintiff represents the deceased. It is not so; the succession is insolvent, and the administrator represents the creditors.

The case of Gravier’s curator v. Carraby’s executor, is not applicable to this-controversy. Judgment affirmed.-