William A. Britton & Co. v. Heirs of Scott

Howe, J. This action was instituted on two mortgage notes, executed by John P. Scott, one due February 18, 1862, the other due February 18, 1863. The petitioners, among other averments, allege as follows .- “Tlie said John P. Scott, has departed this life, and his succession was and is yet legally open in this parish; that he left surviving him three children who were his legal heirs, Amelia Scott, Louisa H. Scott and John G-. Scott, who have accepted Ms succession and are now in possession thereof, and liable respectively for their virile portions of the debts of the said deceased.” They pray for “judgment against the succession of John F. Scott, deceased, as represented by his said legal heirs, and against said heirs respectively for their virile portions,” and for the enforcement of the mortgage. Amelia Scott (Mrs. Doniphan) was cited April 16, 1867; Louisa H. Scott (Mrs. Cunoy) was cited Apa W. 1867; John G-. Scott was cited March 12, 1868. They made no appearance and j udgment by default was confirmed November 13, 1868. The judgment is “ against the succession of John P. Scott, represented by Amelia Scott * * * Louisa H. Scott * * * and John G. Scott, children and heirs at law of said John P. Scott, deceased,” and for a seizure and sale of the mortgaged property. Prom this judgment the parties cited as above have appealed, and have pleaded in this court the prescription of five years. The whole claim is plainly prescribed as to John Gr. Scott. As to the other parties cited the note falling due February 18,1862, is prescribed* *113 The record does not show that John F. Scott is dead, nor that his succession was ever opened, nor that the parties cited ever accepted the succession or took possession of it. Under such circumstances we think that in the interest of justice and regular practice the case should he remanded. It is therefore ordered that the judgment appealed from he avoided and reversed, and that the cause he remanded to he proceeded with according to law.