LOBRANO V. NELLIGAN, 76 U. S. 295 (1869)

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U.S. Supreme Court

Lobrano v. Nelligan, 76 U.S. 9 Wall. 295 295 (1869)

Lobrano v. Nelligan

76 U.S. (9 Wall.) 295


Although by the general law of Louisiana, a father's guardianship of his minor children imports a mortgage on his immovable property in their favor, yet this mortgage does not make such a contract between the guardian to the minor as that the legislature may not, by special statute, authorize the father to sell his property divested of the tacit mortgage, especially where the proceeds are still preserved to the minors by an investment which the statute prescribes.

By the Civil Code of Louisiana, the father is the administrator of the estate of his minor children, and does not, as in communities where the common law prevails, give personal security for the fidelity of his administration, but his immovable property is tacitly mortgaged in favor of the minor from the day of his appointment as security for his administration and for the responsibility resulting from it.

In this condition of the general law on the subject, the legislature empowered James Robb, of New Orleans, to sell his real estate under certain conditions, and directed so much of the proceeds of the sale as should be coming to his children to be invested for their benefit, subject to the approval of the probate court, in certain species of securities, which could not be assigned or transferred until the termination of the administration. Power was given to the court to discharge the mortgage to the children on compliance with the conditions imposed in the act. And the court having so discharged the mortgage to the children, Robb sold the property to one Nelligan. Nelligan in turn sold it to one Lobrano. Lobrano, however, refused to complete the purchase, assigning as a cause that the property was subject to a legal mortgage in favor of the minor children, and that the act of the legislature by virtue of which it was pretended that the mortgage was raised and cancelled impaired the obligation of a contract, and was therefore unconstitutional and void. Suit being brought by Nelligan against Lobrano

Page 76 U. S. 296

for the purchase money, and the plea of unconstitutionality being set up, the Supreme Court of Louisiana held that the statute impaired no contract and was valid. Lobrano then brought the case here.

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