Killelea v. Barrett

Dissenting Opinion. Manning, J. I dissent. There is but one question in this case that need be exapiined, viz whether the succession of Mr. Killilea was represented in the executory proceedings. 1 understand it is now settled that in foreclosing a mortgage upon community property given by the husband, it is not necessary to make the. wife’s heirs or representatives parties if she has died after the mortgage and before its foreclosure. In my opinion the wife’s heirs have no interest in the property until the debts are paid. These children are necessary parties only because the succession of their father has no administrator, and they are called in to represent his succession, and therefore the rules concerning the forced alienation of minors property are not involved. The whole case turns in the opinion of the court on the non-production of the tutor’s oath. I think in such case the presumption should be that- the tutor did his legal duty, and at any rate it is one of those omissions to which the prescription of five years is applicable. It will be brittle thread for titles to hang on if the production of a loose slip of paper containing an oath is to determine whether the title be good or bad. I think the defendant should have judgment.