# Fried v. Bradley > Supreme Court of Louisiana · February 12, 1951 · 219 La. 59 URL: https://www.frixlaw.com/law-library/cases/9683029 ## Case - **Full name:** FRIED Et Al. v. BRADLEY Et Al. - **Court:** Supreme Court of Louisiana - **Decided:** February 12, 1951 - **Citations:** 219 La. 59; 52 So. 2d 247; 1951 La. LEXIS 849 - **Precedential status:** Published - **Opinion:** On rehearing by Hamiter - **Judges:** Hamiter, Ghief, Fournet, McCaleb, Hawthorne, Blanc - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9683029 ## Opinion text On Rehearing. HAMITER, Justice. On the original hearing of this cause the demands of plaintiff were rejected on the theory, as is shown'by the majority opinion, that the liberative prescription of ten years provided by Civil Code, Article 2221 is applicable to the executors’ deed in contest and, therefore, precludes the action. Complaining of the decision plaintiffs’ counsel filed an application for a rehearing in which they disputed at length its correctness and the soundness of the mentioned theory. Further, in the application, counsel contended: “ * * * assuming (without admitting) that the prescription provided by Article 2221 can be applied to the action now before the Court and to the so-called executors’ deed now under consideration, the Court erred in extending that prescription so as- to preclude the assertion of the community one-half (Y) interest in this property formerly owned by plaintiffs’ mother, Mrs. Rosa Beer Fried. “In this connection, petitioners respectfully point out * * * that had the so-called executors’ deed now under consideration been initially legal and valid, executed in compliance with all the requisites of the law, it could have conveyed no greater interest in this property than the community one-half (Y) interest then belonging to the estate of Sol Fried, and could not have affected or .conveyed the community one-half (Y) interest in this property which had theretofore vested in Sol Fried’s widow and which at the time of the execution of this so-called executors’ deed was owned exclusively by her; and that, as a consequence, even if the prescription provided by Article 2221 can be applied to plaintiffs’ present action and to the so-called executors’ deed now under consideration, the application of that prescription cannot enlarge the effect of that so-called deed so as to vest in the vendee title to the widow’s community one-half (Y) interest, which such vendee could not legally have acquired under said so-called deed even if it had been completely legal and valid at the time of its execution. * * *85 After careful consideration of the application we ordered, to quote from the court minutes, that: “Rehearing granted insofar as Rosa Fried’s community interest in the property is concerned. In all other respects the application is denied.” The issuance of the order (so restricted) was influenced by the above quoted contention contained in the application, we having failed to discuss in our original opinion any question respecting the community interest of Rosa Fried and our thought then was that perhaps an issue relating thereto and created between the parties in the trial court had been overlooked. But we find, following the arguments on the limited rehearing and our further examination of the record, that an issue of such nature was never before the trial court or passed upon by it. In no place in their petition did the plaintiffs allege that the executors, by the assailed deed, attempted to convey only the community interest in the property of Sol Fried. Nor did they plead, as they might have done, that in the event of a denial of recovery of Sol Fried’s community interest they were entitled to be recognized as the owners of Rosa Fried’s one-half interest. Rather, they alleged that the executors “executed a deed by which they attempted to convey the NE14 of NE14) Section 36, Township 17 North, Range 8 East, Richland Parish, Louisiana, to John Bradley.” And they urged in the petition that such deed is a nullity only for the following causes and reasons: “(a) Jacob Fried, Marcus Fried, Charles H. Fried and Louis I. Fried had not at the time of the execution of this deed qualified as Executors of the Succession of Sol Fried by probate or succession proceedings had in the Probate Court of Richland Parish, Louisiana, and they were, therefore, without any right to administer or exercise any power in regard to the real estate owned by the Succession of Sol Fried situated in Richland Parish, Louisiana. “(b) That no order of court was ever issued authorizing the parties to sell this or any other Succession property. “(c) That there were no debts owing by the succession and there was no necessity for this succession property to be sold. “(d) The sale was made as a private sale instead of at public sale. None of the requirements, such as having the property advertised, appraised and offered to the highest bidder, or any other formalities and requisites were performed. “(e) That the alleged vendors had no power, authorization or legal right to represent the succession of Sol Fried in selling this property.” According to their pleadings, in other words, plaintiffs treated the executors’ deed as if it purported to convey to John Bradley the entire property .and they placed before the trial court for consideration and determination the principal question of whether or not 'such deed was valid; they sought no ruling as to the effect of such deed on *87 the respective community interests of Sol and Rosa Fried. And the district judge, pursuant to plaintiffs’ allegations and as appears from his written reasons for judgment, passed upon such principal question without considering if the property belonged to the separate estate of Sol Fried or to the community existing between him and his wife. It being true then that the plaintiffs neither raised nor argued in the district court the issue now discussed of whether the executors’ deed affected and conveyed the community one-half interest of Rosa Fried, such issue is not properly before this court and we are unable to consider it. The jurisprudence is well settled that pleas and issues not made in the court of first instance cannot be raised on appeal. Champagne v. Champagne, 125 La. 408 , 51 So. 440 ; Succession of Turgeau, 130 La: 650, 58 So. 497 ; Safford v. Albritton et al., 161 La. 773 , 109 So. 486 ; Lindner v. Cotonio, 175 La. 352 , 143 So. 286 ; Succession of Quinn, 183 La. 727 , 164 So. 781 ; Gaines v. Crichton, 187 La. 345 , 174 So. 666 ; Shannon v. Shannon, 188 La. 588 , 177 So. 676 ; Crichton et al., v. Lee et al., 209 La. 561 , 25 So.2d 229 . For the reasons assigned our decree heretofore rendered is now reinstated and made the final, judgment of this court. FOURNET, C. J., concurs and assigns written reasons. McCALEB, J., concurs in the decree with written reasons. HAWTHORNE, J., takes no part. LE BLANC, J., concurs. FOURNET, Ghief Justice (concurring). It is my opinion that after the lapse of ten years from the execution of the deed whereby the executors of the estate of Sol Fried sought to convey the entirety of the land, without attack having been made thereon, the plaintiffs by their silence and inaction are conclusively .presumed to have acquiesced in and ratified the act and to have renounced any right they may have had to attack it. That is the conclusion we reached in the original opinion; but when the plaintiffs strenuously urged that the community interest of Rosa Fried could not have been affected, the Court, including the author of the original opinion, considered it might be well to give further consideration to that point and accordingly a rehearing was granted, limited to the question of Rosa Fried’s community interest. While I do not agree with the conclusion of the prevailing opinion that we should not give the question consideration, it is my view nevertheless that the presumption of renunciation of the right to attack the deed, and of ratification of the act, because of silence and inaction for a period of ten years, applies with respect to the entirety of the property sought to be conveyed in the original deed. For these reasons I *89 concur in the decree reinstating the original judgment of the Court. McCALEB, Justice (concurring). While I am in accord with the result reached in this case, I cannot subscribe to the view that plaintiffs are not entitled to a reconsideration of our original holding, insofar as Mrs. Rosa Fried’s community interest in the property is affected, because they did not raise the question in their pleadings and argue it in the district court. Indeed, I think it is rather late and manifestly inconsistent, after we granted a rehearing for the specific purpose of considering Rosa Fried’s community interest, to now conclude that the question is not at issue. It is my appreciation of the law that plaintiffs were not required to present this issue in their pleadings. Their action is based primarily on the nullity of the deed of the executors of the Estate of Sol Fried. The defendants denied this claim and further pleaded various prescriptions including that provided by Article 2221 of the Civil Code. Plaintiffs’ charge of nullity of the instrument was sustained both in the lower court and here but, in this court, it was held that the action was barred by the limitation provided by Article 2221 and that plaintiffs were presumed to have ratified the conveyance. There was no need whatever for plaintiffs to file any pleadings to the prescription asserted by defendants as replications are unknown in our practice. Article 329 of the Code of Practice. Hence, it was entirely conformable with good practice for plaintiffs to urge here, in oral argument or in brief, that the pleas of prescription were not well founded. Nor was it imperative that it be shown by the record that the question concerning Mrs. Rosa Fried’s community interest was presented in the court below. For all we know, that question may have been raised in oral argument but, if not, the matter was of little, if any, importance in that court as the pleas of prescription were overruled by the judge. Nevertheless, it is my opinion that the result on rehearing is correct for two reasons. In the first place, I think that the executors of Sol Fried intended and attempted to convey the entire property to defendants, including the community interest of Rosa Fried. Under these circumstances, it seems clear to me that this action, insofar as it affects the heirs of Rosa Fried, is prescribed under Article 2221 of the Civil Code, because, by their acceptance of the proceeds of the sale, they are considered to have ratified the act of the executors, as pointed out in our original opinion. Furthermore, I am convinced that, even if the liberative prescription provided by. Article 2221 is inapplicable to the community interest of Rosa Fried, the defendants acquired the property under Article 3478 of the Civil Code by prescription of ten years which began to accrue as soqii ^ as *91 the executors lost 'their right of action to recover the property for the Succession of Sol Fried by reason of ratification of the nullity of the conveyance by operation of law. From that time on, the defect as to form was cured and the legal bad faith of Bradley resulting from the original nullity of the deed, was alleviated. Thenceforth, his possession was converted to that of a good faith purchaser under a title translative of property. I respectfully concur in the decree. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9683029. Public record. Not legal advice.