March 24, 1924. On the Merits, June 22, 1925.
Appeal from Civil District Court, Parish of Orleans; Percy Saint, Judge.
Suit by Mrs. Kate Giglio against Felix Giglio, also known as Frank Rouseo. Decree for plaintiff, and defendant appeals. Motion to dismiss overruled. Judgment affirmed.
Theo Cotonio, of New Orleans, for appellant.
E.M. Stafford and H.W. Robinson, both of New Orleans, for appellee.
By Division A, composed of O'NIELL, C.J., and ROGERS and BRUNOT, JJ.
The plaintiff obtained a decree of divorce from her husband, defendant in this proceeding. It was also decreed that she owned a half interest in certain property that was declared to belong to the marital community, including several city lots; and it was further ordered and decreed "that same be partitioned in further proceedings herein." The defendant did not appeal from the judgment. Four months after it was rendered, plaintiff obtained a rule on defendant to show cause why the property should not be sold at public auction to effect a partition. The defendant filed several exceptions to the proceeding, and, the matter having been argued and submitted on the exceptions, there was judgment for plaintiff, making the rule absolute, and ordering that all of the community property listed on the inventory should be sold at public auction, by a licensed auctioneer named in the judgment. From that judgment the defendant has appealed. The plaintiff has moved to dismiss the appeal, on the theory that the judgment appealed from was only an interlocutory judgment, or only an incident of the original judgment, granting a divorce and recognizing plaintiff's right to a division of the community property.
The original judgment, declaring that the property should "be partitioned in further proceedings herein," was only declaratory of the plaintiff's right to have a division of the community property. The declaration did not purport to be a judgment of partition, for there was no fixing of the terms of the partition or division. It was not even said whether the partition should be effected by dividing the property in kind or by selling it and dividing the proceeds.
The judgment from which the defendant has appealed is the first and only judgment of partition that was rendered in the case. It can hardly be disputed that, as a general rule, the defendant in a partition suit has the right to appeal from an adverse judgment, whether the decree be that the property shall be divided in kind, or that it shall be sold and the proceeds divided. If the property be ordered sold, the defendant does not have to await the final judgment homologating the proceedings. See McCollum v. Palmer, 1 Rob. 512; Blanchard v. Heirs of Blanchard, 7 La. Ann. 529; Woolfolk v. Woolfolk, 30 La. Ann. 146 (declaring that Traverso v. Row, 10 La. 500, and Id., 11 La. 494, had overruled Stokes v. Stokes, 6 Mart. [N.S.] 350). See, also, Cary v. Richardson, 35 La. Ann. 505 (again declaring Stokes v. Stokes overruled); Maguire v. Fluker, 112 La. 78, 36 So. 231; and Larose v. Naquin, 144 La. 201, 80 So. 254.
The motion to dismiss the appeal is overruled.
On the Merits.
The facts are sufficiently stated in the foregoing opinion, overruling the motion to dismiss the appeal, and need not be repeated here.
When the judgment dissolving the marriage between plaintiff and defendant became final, they became co-owners in indivision of all the property which belonged to the matrimonial community (the wife having accepted the community within the delay prescribed by law), and either one of them had the unquestioned right to provoke a judicial partition of the community property. This proposition is not disputed by the defendant.
The complaint of the appellant is that the forms prescribed by law have not been observed, and hence that the order directing a sale of the property to effect a partition was illegally and improvidently granted and should be set aside.
The contention is based on the allegations contained in an exception to the effect: (1) That no appraisers had been appointed by the court to appraise the property sought to be inventoried; (2) that the inventory as made includes property which does not exist; (3) that the inventory has never been approved or homologated; (4) that the inventory was not taken contradictorily with the defendant; (5) that the parties in interest should have been referred to a notary public; (6) that no sale of the property can be ordered unless it is shown that the property is not susceptible of division in kind; and (7) that a sale of the property would be useless because it is heavily mortgaged and incumbered by judgments against the defendant; (8) that defendant is unable to meet his creditors and his liabilities exceed the value of his estate; (9) that defendant's property has been seized, and, unless the said seizure is released and the debts paid, no proceedings can be had herein.
The objections were all overruled by the court, and we think properly so.
It is provided by article 1324 of the Civil Code that every judicial partition shall be preceded by an inventory in which the effects to be divided shall be appraised according to the form prescribed for public inventories. And where an inventory has been made by the parties interested at a time not exceeding one year previous to the suit for partition, the inventory so made shall serve as a basis of the partition, unless one of the parties demands that a new appraisement be made, and proves that the effects mentioned in the inventory have not been estimated at their just price, or at a value they have acquired since the date of the inventory. C.C. art. 1325.
In the suit for divorce, the plaintiff prayed that an inventory and appraisement of the community property be made by a designated notary. The court so ordered, and the inventory was made by the notary after due notice to the defendant. This inventory was made within a year previous to the suit for partition. The requirement of the law was thus complied with. The court was not required to appoint the appraisers to make the inventory, and we know of no law, and have been referred to none, which required the court to approve and homologate the inventory.
It has been the custom among some members of the bar to obtain such an order of approval from the judge, but, as we have stated, such an approval is not specifically required, and its omission certainly cannot affect the validity of the inventory.
The defendant was ruled to show cause why the property of the community as inventoried should not be sold at public auction to effect a partition. There is no evidence in the record to show whether the property could or could not be divided in kind. We must therefore, in the absence of such evidence, assume that the trial judge was satisfied that the property was not susceptible of division in kind; otherwise he would not have ordered the property to be sold at public auction. The presumption of the law is that the judgment was supported by legal and proper evidence.
There are no creditors of either the community or the separate spouses who are opposing the sale to effect a partition, and the defendant is without interest in championing the rights of the creditors, if any there be. Besides, if there are any mortgages on the property to be partitioned, either against the community or the separate spouses, the holders of such mortgages will not be without a remedy to protect their rights.
It may be, as contended by defendant, that his liabilities largely exceed in amount the value of his interest in the property, and it may be that his interest is under seizure (there is no evidence to this effect), still that fact would not deprive the plaintiff of the right to have a sale of the property for the purpose stated.
The appellee has answered the appeal, and prays for an amendment of the judgment by fixing the terms of the sale at one-half or more cash, balance in one year, with 8 per cent. per annum interest; the credit portion, if any, to be secured by vendor's lien and mortgage on the property sold, with the pact de non alienando, with provision for insurance and all security clauses, the purchaser to deposit 10 per cent. of the purchase price at the time of the adjudication, etc.
The trial judge was charged with the duty of regulating the manner and method of effecting the partition as it appeared to him to be the more convenient and the more advantageous to the parties in interest. And either of the parties had the right to demand that the sale be made for cash to cover the interest coming to such party. No such demand appears to have been made in the lower court, nor was the matter of sale on terms of credit considered.
In the absence of any provision in the judgment to the contrary, the terms of sale must be for cash, and at not less than two-thirds of the appraised value of the property at the first offering. Succession of Hood, 33 La. Ann. 472; Sibley v. Pierson, 125 La. 522, 51 So. 502.
If it is the desire of either of the parties that the sale should be made on terms of credit instead of for cash, on proper application the district judge will doubtless grant the relief prayed for. As the sale on terms of credit was not submitted to the lower court, we do not feel authorized to amend the judgment in this respect.
The judgment appealed from is affirmed.