Kuhn v. Bercher

Citations

• 114 La. 602
• 38 So. 468
• 1905 La. LEXIS 513

Syllabus

<p>DECEDENT’S ESTATE — STALE DEMANDS — PAYMENT — PRESUMPTION—BURDEN OE PROOE — PRESCRIPTION.</p> <p>1. Stale demands, withheld from prosecution until after the death of the alleged debtor and all the parties interested in and cognizant of the transaction, are regarded with disfavor, and, where no hindrance was in the way, must be established with more than reasonable certainty.</p> <p>2. Plaintiffs, who in 1904 demanded the collation of an alleged debt against the minor children of a deceased coheir, based on the assumpsit of certain mortgage debts of the common ancestor in an act of sale passed in 1875, and who alleged that the purchaser did not discharge the said debts, and for that reason became the unconditional debtor of the vendor, who died insolvent in 1878, assumed the burden of proving the negative averment on which they relied, and to rebut the presumption of payment resulting from the silence and inaction of creditors and coheirs and the running of prescription against the assumpsit and the mortgage debts.</p> <p>3. It is unnecessary to decide whether a debt of a child to his father, originating in an onerous contract, is prescriptible after the death of the creditor only by the lapse of 30 years, as against coheirs demanding its collation.</p> <p>(Syllabus by the Court.)</p>