Becnel v. Stewart

Citations

• 117 La. 744
• 42 So. 256
• 1906 La. LEXIS 764

Syllabus

<p>1. Partition — Defendant Minors — Sanction of Family Meeting.</p> <p>The right of parties holding property in indivisión with minors to bring suit against them for a partition, without the prior sanction of a family meeting on behalf of the minors, authorizing them to stand in judgment, is beyond question. This right of suit is not to be trammeled by the failure of the representative of the minor defendants to obtain the fixing by a family meeting of the terms of sale- so far as their interests are concerned. The plaintiffs should, however, see that the minors are legally represented. If the representative fails to have the terms fixed by a family meeting, the court itself is authorized to order the sale of the property, so far as the interest of the minors is concerned, to be made for cash.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, (Partition, § 87; vol. 27, Infants, §§ 195, 190.]</p> <p>2! Infants — Partition—Representation by Tutor.</p> <p>Where one of the co-owners bringing suit for a partition against minor joint owners has married the husband of a deceased sister, and is joined in such suit by her husband to authorize and assist her, the husband, though tutor of the minor children, issue of his marriage with his first wife, cannot legally represent the minors as defendants in such suit.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 27, Infants, §§ 198-200.]</p> <p>3. Partition — Delay—Judicial Discretion.</p> <p>The court is of opinion that article 1289 of the Civil Code, which declares that “no one can be compelled to hold property with another unless the contrary has been agreed upon; any one has the right to demand a division of a thing held in common by the action of partition,” was not intended to announce a cast iron rule, requiring, where a co-owner demands that the property held in common should be partitioned, that the partition should be ordered to be made at once, without regard to presently existing conditions