Eby v. McLain

Citations

• 123 La. 138
• 48 So. 772
• 1909 La. LEXIS 687

Syllabus

<p>1. Minors and Tutorship —Accounting by Tutor — Exclusiveness oe Remedy.</p> <p>Property belonging to a minor and existing in kind at his majority, found in the possession of a third person, can be recovered by him, with fruits and revenues, in a direct action against the person in possession. Neither he nor the tutor can limit the remedy of the minor to an action inside of the tutorship for the value of the property.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 476, 488; Dec. Dig. § 143.*]</p> <p>2. Minors and Tutorship — Undertutor — Agent oe Tutor — Mandate—Liability.</p> <p>The court cannot recognize the existence of a conventional agency between a tutor and an undertutor. A tutor cannot appoint the undertutor to act as his agent in the matter of the tutorship, nor can the undertutor accept such a mandate from the tutor. It is the duty of the undertutor to guard the interests of the minor and to call the tutor to account, and he should not place himself in a position which leaves no one to perform that duty but necessitates, on the contrary, that the tutor should call on him to account. If he undertakes to administer the affairs of a succession under a power of attorney from the tutor, he will, as between himself and the minor, be held to the obligations .of a “negotiorum gestor,” and to a direct liability to the minor. The mere form in which this liability is enforced is not sacramental. That form is more in the interest of the plaintiff than of the defendant. The defendant is as free to set up his defenses and to advance his claim in a direct action as in “an action to account.”</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Dec. Dig. § 12.*]</p> <p>(Syllabus by the Court.)</p>