McCoy's Heirs v. Derbonne

Citations

• 109 La. 310
• 33 So. 326
• 1902 La. LEXIS 148

Syllabus

<p>UNDERTUTOR — APPOINTMENT — INVENTORY-RECORD — DUTIES OF JUDGE-TUTOR BY NATURE.</p> <p>1. Clerical error in writing name of man really appointed undertutor of minors held not to vitiate the- appointment.</p> <p>2. In the several cases in which a tutor is not required by law to give bond, it is made the duty of the clerk of court to furnish a certificate of the amount of the minor’s property according to the inventory on file in his office, which certificate or abstract must be recorded in the mortgage book, and this must be made to appear to the judge before he can make the appointment. Civ. Code, art. 321.</p> <p>3. According to section 2300 of the Revised Statutes, it devolves upon every judge, who is charged with the duty of confirming.a natural tutor, to cause an abstract of inventory showing the amount of the minor’s estate to be recorded in the mortgage book before he grants an order confirming such tutor, and the statute declares that any appointment or confirmation of such tutor before such recording shall have been done shall be null and void.</p> <p>4. Article 3370 of the Civil Code makes it the duty of judges to cause to be recorded the evidence of all legal mortgages resulting from .appointments made by them of tutors to minors, and in default thereof such judges are liable to an action in damages, and even to removal from office.</p> <p>5.Construing, however, these provisions of law with article 304 of the Civil Code, it has become stare decisis that the recognition by the judge of a tutor by nature, permitting him to qualify as such and issuing to him letters of tutorship, even though there was failure to record the abstract of inventory, are not absolute nullities. Certainly so as to third persons who, meanwhile, have acquired rights on the faith of such recognition by the judge.</p> <p>(Syllabus by the Court.)</p>