Succession of Delaneuville v. Duhé

Citations

• 114 La. 62
• 38 So. 20
• 1905 La. LEXIS 416

Syllabus

<p>ADMINISTRATOR OF SUCCESSION — RECOVERS OF ASSETS — SALE OF LAND — ACTION TO RESCIND — TENDER.</p> <p>1. Where a succession owes debts, and the heirs do not come forward and offer to pay them, it is the duty of the administrator to recover the assets, and reduce them to cash for that purpose.</p> <p>2. Where it appears that the decedent has made a sale of real property to one of his heirs, and has received in payment of the price a promissory note secured by mortgage, which note is past due and wholly unpaid, the administrator may proceed alone to enforce the resolutory condition of the contract, or to enforce the mortgage and the payment of the note, as may seem to him best, in the interest of the creditors. And in such case no question arises as to the divisibility or indivisibility of either the right of action to rescind the contract or of the mortgage, since primarily both belong wholly to the succession, and are to be administered for the benefit of the creditors. Nor does the bringing of such suit, whether to enforce the resolutory condition or the mortgage, involve any attack upon the acts of the de cujus; on the contrary, the purpose of the suit is the enforcement of a right, written into such contracts by the law, or secured by the convention of the parties.</p> <p>3. Generally speaking, no doubt, in actions to rescind contracts of sale for nonpayment of the price, the plaintiff must tender so much of the price as may have been paid; but the rule is no broader than the reason upon which it is founded, and, where it seems likely that upon a final adjustment there will be nothing due the defendant, such tender need not be made.</p> <p>(Syllabus by the Court.)</p>