Fradella v. Pumilia

(dissenting).

I feel impelled to dissent from the majority opinion because, in my view, the sale to-Marco Rosamano was a valid sale. That sale was not the result of a suit for a judicial partition. No defendant was named, no citation issued, and no judgment was asked against any person condemning the sale of the property.

The proceedings leading up to the sale were clearly instituted under the provisions of section 2667 of the Revised Statutes, as amended and re-enacted by Act No. 25 of' 1878, authorizing the private sale of property held by minors in common with other persons. See Becnel v. Louisiana Cypress-Lumber Co., 134 La. 467, 64 So. 380.

The purpose of the statute is to dispense-with a judicial partition of particular* property wherein minors have an interest, as had' been required by article 1323 of the Civil Code, and to substitute therefor a private-sale on the application of the tutor for the .convocation of a family meeting to- advise upon the sale. The statute protects the minor co-owners by requiring, in addition to-its approval of the sale, that a family meeting composed of the relatives or friends of the minors appraise the property and fix the-terms of sale; that the sale be made for not less than the appraised value and on the terms fixed by the family meeting; and that the proceedings be approved by the probate judge. If the major co-owner is willing to sell on thetbasis thus established, the whole property may be sold at private sale. Becnel v. Louisiana Cypress Lumber Co., supra.

*61 Although the proceedings under review in this case did not specifically set forth that they were instituted to effect a partition, neither did they specifically set forth that they were instituted for the purpose of paying debts.

All the formalities required by Act No. 25 of 1878 were complied with. Preceding the sale a family meeting was held under an order issued hy the probate judge, upon the application of the dative tutor of the minors, which appraised the property, recognized the necessity and propriety for the sale, and fixed its terms. The recommendations and findings of the family meeting were concurred in hy the undertutor, and the proceedings, with the concurrence of the tutor, were approved by the probate judge, who accordingly ordered the sale.

The whole property was sold to Rosamano at the price and on the terms fixed by the family meeting and approved by the probate judge; and the act of sale was signed by Mrs. Francisco Fradella,' the widow, for herself, and by Casimir Dauenhauer, the tutor, for the minors. The minors’ share of the proceeds of the sale, after payment of a mortgage held by Rosamano against the property, were deposited first in the registry of the court, and thereafter, under an order of the probate judge, in a savings bank, and were paid out from time to time to the mother of the minors for their maintenance and education.

It must be conceded, I think, that if the phrase “to effect a partition” had been specifically set forth in the proceedings, the sale to Rosamano would not he open to plaintiffs’ attack. For my own part, I do not think that the words are so sacred that their omission is sufficient to invalidate the proceedings and annul the sale, when the purpose and effect of the proceedings, as they clearly show, was to bring about a partition by a private sale of the property owned in indivisión by the minors and their mother, which partition actually took place.