author: Watkins, J. Blanchard, J.

text:
    No. 13,156.
    William R. Messick et al. vs. George L. Mayer et als.
    Syllabus.
    Conceding the error alleged to exist in the tax deed of the deceased, same must enure to the benefit of all the transferrees of the property of the deceased— the defendant, Mayer, claiming by purchase at succession sale and the plaintiffs claiming under the law. Inasmuch as the error made was in the description in the tax deed to the deceased and only discovered and established In the present proceeding, the proper conclusion is that the effect of the succession sale was to transfer to the purchaser the entire,lands which stood in the title of the deceased. That instead of the deficit remaining in the succession, it was conveyed by the sale — the prooes verbal of which employed the same description which was contained in the tax deed, and in all subsequent proceedings leading up to the succession sale.
    It is a recognized doctrine of this court that the husband and partner in community having died, leaving a widow and heir surviving him, and some debts unpaid, the entire community assets are liable for the'payment thereof, and can be sold in his succession for the satisfaction thereof without regard to the residuary rights and interest of either widow or heirs; and in such an event, the entire property of the community passes under administration, and becomes liable for sale under order of court to pay debts; and the purchaser at public sale thus ordered and made, is protected by the decree of the court ordering the sale, and need not look beyond it.
    On Rehearing.
    1. A purchaser at succession sale cannot acquire' any greater interest in lands belonging to the dead man and his widow in community than that offered and sold.
    2. What was not advertised, offered and sold remained in the succession, the widow in community and the legal heir.
    3. Under the circumstances as here disclosed the widow in community and the-heir of age have the legal capacity to institute this petitory action and stand in judgment therein.
    4. This is not a suit for any share of the widow in community property which has been sold, but for property of the community which has not been sold for debts, or for any other purpose. The rule that the widow administering community property, when she sells to pay community debts, conveys title to all — not merely her husband’s interest in same — is not involved.
    5. Prescription of ten years, pleaded in protection of a title translative of property, does not run against one who is a minor during his minority.
    APPEAL from the Tenth Judicial District, Parish of Avoyelles— Oappel, J.. ad hoc.

      A. J. Laf argue and II. O. 'Edwards for Plaintiffs and Appellees.

      William H. Peterman for George L. Mayer, Defendant, Appellant.

      ■Jojfrion and Jci'ffrion for Mrs. J. J. Gallaham, Wife of William J. Bentley, Defendant, Appellant.

      Oouvillon and Son for Lucien Guillory, one of the Defendants, Appellees
    Opinion on original hearing by Watkins, J.
    On Rehearing by Blanchard, J.
   The opinion of the court was delivered on the original hearing i>y

Watkins, J.

The plaintiffs Mary Waddill and William R. Messick, representing themselves to be, the former surviving widow and partner in community of William R. Messick, Sr., deceased, and the latter his only son and heir, instituted this suit as joint and equal owners and proprietors, for the recovery of the following described property:

(1) The south half, and north half of the northwest quarter of section 2Y, township 2 south, range 6 east.

(2) The undivided one-half of the whole of section 10; the west half of the southwest quarter of section 35; the whole of section 21; and the south half of northwest quarter of section 2Y, all in township 2 south, range 6 east; and the west half of section 3, in township 2 south, range 5 east — containing in all, the quantity of about 1280 acres, said property being worth the sum of $5,000.00.

They represent that said-property was acquired by William R. Mes-sick, Sr., deceased, during his marriage with the plaintiff, Mary F. Waddill, and that same belonged to the community of acquets and gains existing between them; and that said Messick purchased same at tax collector’s sale on the 8th day of October, 18Y3, “as will appear by reference to said act of sale and the plat attached thereto, which are annexed to and made parts of this petition.”

They represent that William R. Messick ,Sr., died in January, 18YY, and that the plaintiff, Mary E. Waddill, owns one undivided half of said property, as surviving widow in community, and that plaintiff William R. Messiqk owns the other half as heir of his father.

They represent that the title to the property is still in the name of William B. Messick, Sr., deceased, and was never sold by him nor by his administrator after his death.

They further represent that Mary F. Waddill was the natural tutrix of the petitioner, William B. Messick — who is now of full age— and that as such tutrix, she administered the estate of the deceased, but never caused the aforesaid property to be sold.

They represent that the defendant, George L. Mayer, claiming to be the owner of said property, took possession of it, and has been exercising acts of ownership over it, and has cut down and used and sold valuable trees or timber therefrom.

That, without any right or title thereto, and with full knowledge of the fact that it belongs to petitioner, he has been and still is, illegally and wrongfully claiming said land as his own, and has sold and is now offering to sell portions of sanie to various persons.

That said Mayer had sold eighty acres thereof to Lucien Guillory, who has possession of same under his pretended title, and has cut down and used the timber of same, and is cultivating the larger part of it.

That said Mayer has, also, sold and conveyed 160 acres of said land to Mrs. Joyce J. Callaham, who has same in possession, cultivating it, and who has used the trees and timber therefrom.

They allege that said Guillory and Mrs. Callaham bought said land from Mayer with full knowledge of the fact that it belonged to your petitioner; and that they are all trespassers and possessors in bad faith, and liable for rents and revenues. They aver that they have been in possession during the last eight years, and the rents are worth five dollars an acre per annum, and that timber cut down and removed is worth the sum of $2,900, for which they are indebted in solido to petitioners.

Then, the following pertinent allegation occurs, to-wit:

“Your petitioners aver further, that the possession and claim to ownership of said land, by the aforesaid persons were only discovered by your petitioner since the last twelve months.”

The petition then concludes with the statement, “that George L. Mayer has not and never had any title to, or right to said land, and illegally and wrongfully took possession of it and exercised acts of ownership upon it;” and that neither of his vendees have any title thereto. The prayer of the petitioners is, that they be decreed the lawful joint owners of the property and put in possession thereof, and quieted in their title, and that they have and recover $2,900 foT rents, revenues and worth of timber used and destroyed.

Defendant, Mayer, for answer, pleads the general issue first, and then denies that plaintiffs have any right, title or interest in the land claimed.

That if plaintiffs ever had any title to the interest claimed in the lands, which is denied, same is prescribed by the lapse of 1, 2, 3, 5, 10 and 20 years, which said prescriptions are specially urged in bar of plaintiffs’ action and demand.

He further avers that if plaintiffs’ ancestor, William R. Messiek, Sr., deceased, ever had title to the undivided interest now claimed by said plaintiffs in this suit, same passed to him by virtue of the adjudication made at the succession sale of William R. Messiek, Sr., deceased, on the 6th day of December, 1877, which sale is of record in the mortuary proceedings of the succession of said Messiek, and also, recorded in the conveyance records of the Parish of Avoyelles, where the property is situated.

'Further answering defendant, Mayer, avers, that, if the court should hold, that under the aforesaid adjudication to him at said succession sale; but one undivided half interest in and to the property described passed to him as ádjudicatee, then he avers that he became the owner of the other undivided half by virtue of an adjudication at sheriff sale in the suit of J. A. C. Wadsworth vs. Chas. F. Huesman, No. ¿533 of the docket of the parish court of Avoyelles, which said adjudication is made to appear by an act of sale and transfer from Louis A. Joffrion, then sheriff of said parish, to this respondnent, dated December 4th, 1886, and recorded December 27th, 1886, in book of conveyance of said parish.

He further avers_.that said title was judicial and translative of property, and that he has been in the possession thereof under said title in good faith, for more than ten years prior to the institution of this suit; and he specially pleads the prescription of ten years in the maintenance of said title, and against the claims and demands of said plaintiffs.

Defendant further avers, that the- said judicial title can not be legally assailed by said plaintiffs in this action, as the same is a collateral attack thereon, and that said judicial title can be annulled or set aside only in a direct action instituted for the purpose of setting same aside, contradictorily with him.

He further answers, denying that he is a possessor in bad faith, but shows to the court that every muniment of his aforesaid title rests upon public, judicial sales made by and under the authority of a court of competent jurisdiction in judicial proceedings by public outcry, after due and legal advertisements.

He further avers that being a possessor in good faith, he is entitled, should his title be annulled, to have and recover from said plaintiffs, the price he paid for said property claimed by the plaintiffs, with legal interest thereon in the sum of $1,500 from December 4th, 1886, together with all taxes, penalties and interest paid thereon, amounting in addition to the sum of fifteen hundred dollars.

His prayer is in conformity with his answer, and he demands judgment for the sums specified in the event that his title is annulled.

Lucien Guillory, in answer to plaintiffs’ petition, sets up title derived from defendant, Mayer, making claim for improvements and for the amount of the purchase price paid, calling Mayer in warranty, alleging good faith and á valid title.

Mrs. Calliham makes a similar answer, and a like claim for improvements and taxes paid, and sets up title from Mayer in good faith, and for a valuable consideration, and in the event of eviction, for improvements made and taxes paid.

Roth Calliham and Guillory urged pleas of prescription similar to those of Mayer.

On these issues, the case went to trial, and upon the administration of evidence, the judge ad hoc rendered judgment in the plaintiffs’ favor for one undivided half of the following described property:

Section 10; west half of southwest quarter of section 35; section 21; pouth half and northwest quarter of section 27 all in township 2, range 6; also west half of section 3, township 2, range 5 — the whole including 2,160 acres.

The description of the land in the judgment and that in plaintiffs’ petition are identical, with the exception tl^at the judgment gives one-half undivided interest in south half and northwest quarter of section 27, whereas the whole interest is claimed; but the judgment conforms to the description in the tax eollcetor’s deed to Messiek, with the single alteration or change in the word “and” for the word “of,” to conform to the plat annexed to the tax deed.

The claim of the plaintiff is, that she, as natural tutrix, administering the succession of her deceased husband, procured an order of court for the sale of an undivided half interest in the property as described in the tax collector’s deed, in October, 1897, for the payment of succession debts, and that Mayer became the purchaser thereof; and as a result of mis-deseription of the property in the tax collector’s deed, he acquired only one-half interest in the south half of northwest quarter of section 27, equal to 80 acres, but did not acquire the south half and the north half of the northwest quarter of section 27, as it should have been described, equal to 400 acres.

In other words, while the description in the judgment of the whole property is just the same as that claimed in the petition, yet by making the consolidation of the legal subdivisions, a loss of 200 acres resulted to the plaintiffs — notwithstanding the judgment corrects the error of the tax deed — -the last mentioned land having remained unsold, by reason of said mis-deseription.'

And, plaintiffs’ further contention is, that under the adjudication tp Mayer of one undivided half interest, he claimed and entered into possession of the whole land covered by the tax deed and judicial sale, and, also, of the land which was not properly described in the tax deed, and not mentioned in the proves verbal of the judicial sale; and that he made sales of portions of same to the other defendants.

TIence, this suit has for its object the recovery from the defendants of the undivided one-half which Mayer did not buy, and the whole of the portion which is alleged not to have been adjudicated at all.

On this statement, it is clear that the defendant, Mayer, acquired at succession sale in 1877 a clear and perfect title to an undivided half interest in all the property described, except the south half and north half of northeast quarter of section 27, which the plaintiffs contend was not sold at all, by reasons of the alleged error of description; but the tenor of the judgment seems to indicate that the lower court entertained the view that the said alleged error enured to Mayer as purchaser, as well as to the plaintiffs — this appearing from the fact that his judgment was in favor of the plaintiffs for an undivided half interest in the whole of the land.

It is further perfectly manifest that Mayer at all events, must be deemed as a joint owner with the plaintiffs in indivisión, and, therefore, possessed of an equal right to enjoy possession, as the plaintiffs are of the other undivided half.

The three difficulties which the defendants interpose to the demands of the plaintiffs are (1) that they rest their .claim, upon an alleged error of description in a deed bearing date more than 25 years anterior to the institution of this suit, and rely upon a single sketch of the locus in quo purporting to have been made by the parish surveyor, and which is not authenticated in any way or dated or approved by any one; (2) that they assert claim to a half interest in the property which was by the administratix of the succession of his ancestor caused to be sold at public auction more than twenty years ago to the defendant, Mayer, ostensibly as the entire interest of the succession óf Messiek, and in which they have, to all appearances, acquiesced since, and made no complaint of its subsequent sale at auction to the defendant, nor set up any adverse claim thereto; (3) that they ignore and seek Ito avoid the sheriff’s deed of sale under a judgment to the defendant, Mayer, in a collateral manner, notwithstanding they do not assail the judgment as being null and void, though said judgment and sale have been extant, as evidenced by public records, for more than ten years under which the defendants have been in possession.

It is upon these proceedings and sales that the defendants rely in support of their pleas of five and ten years’ prescription.

The argument of the counsel of the principal defendant, Mayer, is, that the legal effect of the sale by the plaintiff, Mistress Waddill, as natural tutrix'of her co-plaintiff when a minor, administering the succession of her husband and his father, made at public auction on December 6th, 1877, was to divest the title of Messick’s heirs and legal representatives to the entire tract of land, one-half of which the plaintiffs now claim, and that same vested ownership and title to the whole, in so far as Messick’s heirs and legal representatives are concerned, in him, as the adjudicatee at that sale.

That there can be no doubt that the purpose of said sale was to dispose of all of Messick’s right, title and interest in and to all the property of which he died possessed.

That soon after his death, in the month of January, 1877, she presented a petition to the court, setting forth the fact of her husband’s death; that he left one minor child, issue of their marriage; that she was entitled by law to be confirmed natural tutrix of this minor child, but that previous to her said confirmation, it is necessary that “all the property, whether separate or community, belonging to said estate should be inventoried.” She, thereupon, caused a commission to issue as required by law in such cases, a true and faithful inventory to be taken of all the property belonging' to said estate whether it be community or separte, and to make due reiturn of the proceeding's.

That upon this application, the court, on January 31st, 1877, ordered “a notary to take an estimative inventory of all the property of said estate, whether same be separate or community, and, as soon as he shall have done this, to make due return of his proceedings to this court.”

That pursuant to that direction, ¿nd on February 6th, 1877, a notary made and took “an estimative inventory of the property, movable as well as immovable, belonging- to the succession of William R. Mes-sick, etc., in this parish.”

That the inventory, after describing all other property belonging to the succession, concluded thus:

“Nothing more having been found or offered to be inventoried, I close these presents.”

That afterward, on October 30th, 1877, the plaintiff, acting as administratrix, applied to the court for an order to sell the property of the estate to pay debts, “avering that it was involved to a considerable amount, and therefore, it was necessary to sell the property belonging to said deceased.”

That later, on the 6th of December, 1877, the administratrix acting herself as auctioneer under a commission, which, according to her own solemn, judicial admission, directed, authorized and empowered her to sell at public auction, “all property, real and personal, belonging to William R. Messiek, deceased, situated in the parish of Avoyelles.” That, further, according to the proces verbal of the sale, it appears that all the property of the succession was exposed and sold; and after the description of the property in the proces verbal, the natural tutrix states above her signature, that there was nothing more to offer for sale.

That all these proceedings and recitals show, that it was the intention of the administratrix to inventory and sell the property of her deceased husband, and this purpose was manifested by the twenty-one years and more of silence and acquiescence, during which time it was never intimated or suggested by her, or any one else, thalt the entire estate of Messiek liad not been disposed of at that succession sale.

That during- this long period, the tutrix never attempted to take possession of the land, paid no taxes on it, exercised no acts of ownership over it, and stood by, fully aware of Mayer’s title, and of the fact that he was selling portions to other parties.

That it is a fact worthy of note, that with the sale of succession property above stated to him, all of the active management on the part of the tutrix and administratrix of the succession ceased — she evidently regarding that there was no longer any estate to administer, having filed no account, or made any distribution of funds for settlement with the heir or creditors since.

That, as against all these facts tending to show that it was the intention of the administratrix to sell the entire property out of Messiek’s succession, all that is relied upon 'to prove that only an undivided half interest of the land was adjudicated to him is the three words at the beginning of the description of that tract as given in the inventory, and in the proces verbal of sale.

In both documents, the description is the same (with one important difference to he noted later), that in the process verbal of sale being of the following tenor, viz:

“George L. Mayer being the highest bidder, became the purchaser of the undivided half of 2,160 acres of land, being the whole of section 10, township 2 south, range 6 east; 641 68-100, the south half of the northwest quarter of section 27, township 2 south, range 6 east; and west half of southwest quarter of section 35, township 2 south, range 6 east, 560 67-100; the whole of section 21, township 2 south, range 6 east, 641 20-100 acres the west half of section 3, township 2 south, range 5 east, 321.02- — same being sold in lots of from ten to fifty acres, for the sum and price of eight hundred dollars.”

The description in the inventory is precisely the same, with the difference 'that the last sentence italicized is omitted therefrom.

Thereupon, counsel of defendant, Mayer, says in his brief, page ten, to-wit:

“The plaintiff’s whole case, therefore, is built exclusively upon these three words, “appearing in the inventory and in the process verbal, viz: 'The undivided half.’
“Now if has already been shown that the purpose of the administratrix was to sell all the succession property, and this intention is “strengthened by the description of the property in the proces verbal “of the sale itself; for while it is true tnat the description of the land “does begin with the words ‘the undivided half,’ yet the language of “the description ¿vhieh follows these words can not be harmonized “with the contention that only an undivided half was sold.”

Counsel then refers to the terms used in the description, thus:

“ ‘Being the whole of section 10’; and ‘it is the whole of section 21.’ * * * And ‘the same being sold in lots of ten to fifty acres.’ ”

And, thereupon, he draws the conclusion that this language evidences the intention to sell the whole, and not the undivided half of the land. '

He then says:

“To conclude upon this part of the case, it appears, therefore, that “the entire description of the land in the proces verbal taken as a “whole and especially in connection with the recitals of the various “documents in the mortuary proceedings and the long silence and “laches of the plaintiffs, point unerringly to the conclusion, that the “entire interest of Messick in the tract described was intended to be “and was in law and fact divested by the sale.”

The further contention of counsel is, that should the court find on the contrary that Mayer obtained title at the Messick successsion sale to one-half interest in the property, then he relies on and urges the adjudication 'to him at the sheriff sale in December, 1886, under writ of fieri facias issued in the suit of Wadsworth vs. Huesman. On this last score, his contention is that the court will find from the record that plaintiff, Wadsworth, under his judgment obtained in that suit, seized the undivided half interest of the property in controversy here to be sold, as that of the judgment debtor, and it was legally advertised and exposed for sale, and defendant, Mayer, became the purchaser on a twelve months’ bond, and that the proces verbal of sale was duly recorded in the book of conveyances.

In the court below, the plaintiff sought to overcome the force of said adjudication by attempting to show that Mayer knew at the time of his purchase that Huesman had no title to the property; but there is no proof establishing that fact; that the only testimony offered for that purpose was that taken in the case of Wadsworth vs. Joffrion, and it merely shows that the attorney for Wadsworth was unable to find any title in Huesman, and. on that account, the proceedings in that case were discontinued. But, it further appears that after the discontinuance of that proceeding, Mayer acquired the judgment of Wadsworth against Joffrion, and subsequently seized and sold the property under his judgment against Iiuesman; but, there is no proof in the record to show that Mayer was possessed of any knowledge of Huesman’s ownership in the property,

Defendants' counsel says on the subject that certain it is that Mayer was an open bidder at public sale, and became the purchaser on a twelve months’ bond; paid the bond, and received from the sheriff a deed of transfer.

That it has been shown that all this was done and his title was perfected and recorded in the month of December, 1886, eleven years before the institution of this suit.

Upon an examination of the opinion of the judge a quo, we find the' following reasons for judgment, substantially, to-wit:

“That the record discloses that G. L. Mayer bought the undivided half of this property at succession sale of Messick in 1877, and the other undivided half at sheriff sale in 1886, in the execution of a judgment in suit of J. A. C. Wadsworth vs. C. J. Iiuesman — Mayer becoming transferee of said judgment before execution.”

That in 1887, Mayer sold to Mrs. Bentley, 160 acres, and to one Eugene Guillory forty acres.

He then refers to the discrepancy in the legal subdivisions of the land as described in the tax sale to Messick, and holds the question to be one of easy solution, because the description in the deed was explained and interpreted by the plat thereto annexed, showing the error of the tax collector in the deed, and says:

“The plat annexed to said deed must, therefore, prevail. This is further borne out by the computation of acreage, the deed being for 2,064 acres, and, in order to arrive at this estimate, the south half and northwest quarter of section 27, must be embraced; otherwise, there must be a discrepancy in acreage.”

He then observes, that all parties claimed title from a common author. He further states that under the judicial sale in Wadsworth vs. Huesman, he does not think Mayer acquired any title, and, therefore, could not convey any.

He further states that he does not think that the pleas of prescription urged'by defendant Mayer, are good; that of ten years is the only-plea of prescription earnestly pressed by defendant;' but the proof does not show that his possession began by any actual or corporeal possession.

The property at the time of sale was, principally, unoccupied swamp or woodland, and not susceptible of actual occupancy or possession.

On the foregoing statement of the pleadings and of the opinion of the judge a quo — and which are substantially borne out by the proof in the record — our impression is, that all parties to the present litigation claimed under Messick, Sr., deceased, as the common author; and that he derived title at tax sale.

That conceding the error alleged to exist in the tax deed, we think it quite clear, that same must enure to the benefit of all the transferees of the property of the deceased — the defendant, Mayer, claiming by purchase, and the plaintiffs claiming under the law.

That, inasmuch, as the error made was in the description in the tax deed to Messick, and only discovered and established in the present proceeding, we think that the proper conclusion is, that the effect of the succession sale was to transfer to Mayer either the whole land of the succession of Messick, or, at'least, an undivided one-half interest therein.

That instead of the deficit remaining in the succession, it was conveyed by the sale — the proces verbal of which employed the same description which was contained in the tax deed and in all subsequent proceedings leading up to the succession sale.

It seems quite clear, that it was the intention of the tutrix to inake .a sale of the property of the succession to pay debts of the deceased. It appears from all the proceedings and records, that the sale was intended to embrace all the property which is contained in the inventory, without reservation.

.The .evidence shows that Mayer was of the opinion that he had acquired title to the whole, and it is not inconsistent with these pretentions that he should have purchased any outstanding claim of another person at public sale with a view of confirming his previous acquisition.

And, such we take to be the judicial proceedings and sale in Wadsworth vs. Huesman.

All the foregoing judicial proceedings and sales — that made by the natural tutrix, acting as administratrix, and that by the sheriff— were open, public and notorious, and preceded by advertisements and evidenced .by the records of the conveyance office in the parish where the property was situated, and, necessarily convey notice to all persons claiming- an interest in the property.

In our opinion, the conclusion is irresistable to the. effect, that the ease should have, been decided in favor of the defendant in the lower court; and we rest this conclusion principally upon the ground that the tutrix administering the succession of her deceased husband, ostensibly and necessarily sold and adjudicated the whole and entire property thereof, leaving no contingent interest- therein, remaining-unsold.

It is a recognized doctrine of this court, which has been pronounced in many decisions, that the husband and partner in community having- died, leaving- a widow and heirs surviving him, and some debts unpaid, the entire community assets are liable for' the payment thereof, and can be sold in his succession for the satisfaction thei-eof, without regard to the residuary rights and interest of either widow or heirs.

In Ricker vs. Pearson, 26 Ann., 391, this statement of the facts of the case is made, viz:

“This suit is instituted by the plaintiff against the purchasers at “these sheriffs sales, the plaintiff claiming that the property was com“munity property, and belonged equally to. his father and mother; “that when his mother died, the community was. dissolved; that his “mother’s share descended to him; that his title thereto has never “been divested, and that he should be quieted therein.”

That extract discloses the exact situation which is presented in the instant case.

The court said:

“Under the authority of Brown vs. Jacobs, 24 Ann., 530; Sadler vs. Kimbrough, 24 Ann., 534; Rusk vs. Warren, 25 Ann., 314, and Phelan vs. Ax, 25 Ann., 379, the plaintiff’s claim must be rejected — the property Laving- been sold to pay community debts.

In such an event, the entire property of the community passes under administration, and becomes liable for sale under an order of court to pay debts.

In that event, a purchaser at public sale thus ordered and made, is protected by the decree of the court ordering the sale, and need not look beyond it.”

In succession of McLain, 12th Ann., 222, the court, through Mr. Justice Merrick, said:

“We think it results from the whole act (1837) taken in connection with the code, that unless the heirs furnish the executor with money to pay the debts, he' has the same right which the administrator has • * * to cause sufficient property of the estate to be sold to pay the debts, and when he applies to the court for that purpose, like the administrator, he fully represents the succession.
• “The widow, the partner in the community after its dissolution, has a vested interest in it which she may accept, nevertheless her acceptance will no more take the administration out of the hands of the executor or administrator, than will the like acceptance on the part of the heir.
“Before the dissolution of the community by the death of the husband, the wife has only an eventual interest in it. The husband is the head and master of the community, and may sell and dispose of the same by onerous title as he sees fit, without her permission or consent.
* * •» * * * *
“Now as the husband is responsible for the debts of the community, and must answer to the same out of his separate estate, if the community is insufficient, and the wife may "renounce and claim that her paraphernal rights shall be paid out of his estate, the settlement of the community is a natural consequence•of the settlement and payment of the debts of his succession.
• “The funds of the community, out of which the debts are to be paid, ought to be placed in the hands of him who is charged with the payment of the debts, hence the settlement of the succession of the husband naturally carries with it the sale of sufficient effects of the community as are incident to payment of its debts.
# # it # # #
“And, it is thus evident that the administration of the succession of the deceased husband involves with it the administration of the community.
“The testamentary executor could, therefore, rightfully apply for the sale of the property of the community, and the order of the judge decreeing the sale must be considered as a protection to all persons purchasing it.
“As the purchaser at the probate sale acquired all the interest which the widow in community could have in the property, there is no reason why he should not comply with the terms of sale/’

In Lawson vs. Ripley, 17 La., 248, the court used this language:

“The succession of the husband is, therefore, so far connected with the community as to form together at the time of his death, an entire mass called his estate, which is not only liable for the payment of the common debts, but also for the portion of the wife or her heirs to the residue, if they have not renounced.”

The foregoing cases were cited with approval in the succession of Lamm, 40th Ann., 312.

Similar views were entertained and expressed in this court in Verrier vs. Sheriff, 48th Ann., 717; Abes vs. Levy, 48th Ann., 41; Hewes vs. Baxter, 46th Ann., 1,281; Succession of Hooke, 46th Ann., 353, and Landreux vs. Louque, 43rd Ann., 234. See Weil vs. Schwartz, No. 13, 183.

In succession of Cason, it was said “that the community creditors are under no necessity to provoke its liquidation through the medium of the wife’s succession, because it is settled they may disregard the wife’s interest, and proceed directly against the community property in the possession of the husband contradictorily with him alone.”

The proof in the record disclosing — and which is in great part confirmed by judicial admissions — that the surviving widow, as natural tutrix administering the succession of her husband, having taken an inventory of the property of the community, and procured an order for its subsequent sale for the purpose of paying debts of the community, the sale made was essentially a sale of the community property, both of the deceased husband and the surviving wife, which under the decisions necessarily conveyed a full title to the purchaser of all the interest which the community had in the property without regard to any residuary interest of either the surviving widow or heir.

That, such judicial proceedings and sale necessarily included the interest of the surviving widow, and necessarily concluded any claim of the heirs of the deceased.

The terms of the law come to the aid of the judicial proceedings themselves, and serve to perfect and consummate a valid sale.

The sale haviiig- been founded upon an order of court, procured by the tutrix, confessedly for the purpose of paying debts of the community, the purchaser was not bound to look beyond the order of court directing the sale to be made, but had a right to rest upon it, as a foundation of title to the property.

This question has been settled by so many decisions of this court founded upon the provisions of our code, that it seems quite unnecessary to cite additional authority, or recite any additional facts in support thereof.

It is therefore ordered and decreeed that the judgment and decree appealed from be annulled and reversed; and it is further ordered that the demands of the plaintiffs be rejected at their cost in both courts, and that the defendants be confirmed and quieted in their title and possession of the property in dispute.

On Rehearing.

Blanchard, J.

In 1873 William R. Messick, husband and father respectively of the present plaintiffs, acquired by purchase at tax sale 2,164 acres of land in the Parish of Avoyelles.

It was described in the tax deed by legal subdivisions and by reference to two plats annexed to the deed. There appears to have been a variance in one particular between the description in the deed and that in the plat — the result, likely, of a clerical error in the former. The district judge properly held that in respect to this variance the plat must control, and that this is confirmed by the fact that taking the description as furnished by the plats the aggregate acreage was obtained, whereas, taking the description of the deed, the aggregate . acreage was short. See 7 La. Ann. 498; 9 La. Ann. 445 ; 20 La. Ann. 415.

The land thus acquired by Messick was the following:

Section 10, township 2 south, range 6 east; the south half and northwest quarter of section 27, township 2 south, range 6 east; the west half of southwest quarter of section 35, township 2 south, range 6 east; section 21, township 2 south, range 6 east; and the west half of section 3, township 2 south, range 5 east.

In January, 1877, Messick died, leaving a widow and one minor child — plaintiffs herein.

The widow applied to be confirmed as natural tutrix and this was done. An inventory was taken, showing real and personal property of the aggregate value of $3,783.50.

Of the property so inventoried, was the undivided half of the 2,164 acres he had acquired at the tax sale aforesaid, save and except that in section 27, township 2 south, range 6 east, only eighty acres, ip round numbers, instead of 480 acres, were inventoried. That is to say, there was inventoried in that section only the south half of the northwest quarter, instead of the south half and the northwest quarter.

There was, thus, omitted from the inventory the south half and the north half of ithe northwest quarter of that section. And there was no plat annexed to the inventory, or referred to, controlling and correcting the omission.

The'tract of land, therefore, as described in the inventory aggregated 1,764 acres, instead of 2,164, and only an undivided half thereof was inventoried — its value being placed at $800.

In October, 1877, the natural tutrix, setting forth she was as such administering the estate of her deceased husband, applied for an order to sell the property of the estate in order to pay debts.

An order issued as prayed for, the personal property to he sold for cash, the real estate on terms of one-third cash, balance in one and two years. The commission to effect the sale issued to the natural tutrix herself and she made it at public auction.

At this sale George L. Mayer, one of the defendants herein, became the purchaser of an undivided half of section 10, township 2 south, range 6 east; of the south half of northwest quarter of section 27, township 2 south; range 6 east; of the west half of the southwest quarter of section 35, township 2 south, range 6 east; of section 21, township 2 south, range 6 east; and of the west half of section 3, township 2 south, range 5 east.

While the proces verbal of the sale recites that he bought the undivided half of 2,164 acres, that statement is controlled by the description by legal subdivisions which followed, according to which what he purchased was the undivided half of 1,764 acres in round numbers —being exactly the same number of acres actually inventoried, and described by the same legal subdivisions appearing in the inventory.

It thus appears that while the land embraced in the south half and the north half of the northwest quarter of section 27, township 2 south, range 6 east, was acquired by Messick at tax sale in 1873, no part of the same was included in the property inventoried as belonging to his sueession, and no part of the same was sold at his succession sale. Neither was it disposed of by him prior to his death, nor has it been disposed of by the widow in community and the legal heir since his death.

It appears, further, that while Messiek bought at the tax sale the whole of section 10, township 2 south, range 6 east; of the south half of northwest quarter of section 27, township 2 south, range 6 east; of the west half of southwest quarter of section 35, township 2 south, range 6 east; of section 21, township 2 south, range 6 east; and of the west half of section 3, township 2 south, range 5 east — aggregating in round numbers 1,764 acres — only an undivided half interest thereof was inventoried at his death as belonging to him, and at the succession sale which followed no more than an undivided half interest therein was offered for sale and only that interest was adjudicated, sold and purchased by Mayer.

Messiek had not, prior to his death, disposed of the other undivided interest, nor has it been disposed of by the widow in community and the legal heir since his death.

Mayer could not acquire at the succession sale.any greater interest in lands belonging to the dead, man and his widow in community than that offered and sold. What was advertised, offered and sold was an undivided half of 1,764 acres — not the whole of same.

It follows that what was not advertised, offered and sold remained in the succession, the widow in community and the legal heir. Stille vs. Shull, 41 La. Ann. 819.

What thus remained in the succession, the widow and the heir was the other undivided half interest in the 1,764 acres, and the whole of the south half and north half of the northwest quarter of section 27, township 2 south, range 6 east, containing 400 acres more or less.

Nearly twenty-three years have elapsed since the sale took place at which Mayer purchased a half interest in the 1,764 acres, more or less.

Meanwhile and latterly the legal heir has come of age.

It does not appear that any debts are still due by the succession of Messiek. For aught we know the sale of sucession property in 1877 settled the claims against the succession and against the community which had existed between Messiek and the widow he left surviving him.

The heir on' coming of age finds property his father owned, and which the father had not disposed of, and which had not been sold in his suecesssion, claimed by others.

He succeeds to one-half of this property by right of inheritance, and the widow in community may claim her interest therein, the other half, in her own right. •,

The succession of Messick cannot be said to be, practically, under-administration still. - No act of administration has been done therein for over twenty years. There never was an administration provoked' by creditors. The tutorship of the minor heir was opened, and what administration of the succession there was resulted from the acts of the tutrix administering the estate as such.

Under the circumstances here disclosed the widow in community’ and the heir of age have the legal capacity to institute this petitoryaction and stand in judgment therein.

Ware vs. Jones, 19 La. Ann. 428; Dickson vs. Dickson, 36 La. Ann. 453; Aronstein vs. Irwin, 49 La. Ann. 1,482; Succession of Aronstein, 51 La. Ann. 1,056.

When Mayer bought at the succession sale of Messick the fact that the land was sold in forty-acre lots makes no difference. It had to be sold that way under the then constitution. Put what was conveyed was not the whole forty-acre lots, but an undivided half interest in same, and Mayer, having bought all the lots, or rather a half interest in same, became the owner in indivisión of an undivided half interest in the land offered and adjudicated — his co-owner being the succession of Messick, or rather the community .that had existed between Messick and his wife.

That Mayer did not purchase the whole of the lands offered at the succession sale, but only an undivided half interest therein, and that this was the way he regarded his then purchase, is demonstrated by the fact that having obtained a judgment against one Charles E. Huesman he (Mayer), in May 1886, caused execution to issue on same and seized thereunder the other undivided interest in the same lands —seized it as the property of Huesman.

In some way -it seems to have been considered that Messick and Huesman owned the lands in indivisión, though nowhere on the records does Huesman appear as owner of any part thereof.

The property thus seized under the judgment of Mayer vs. Hues-man does not appear to have been sent to sale, and in August, 1886, the seizure was ordered released by the plaintiff.

Following this, however, Mayer acquired by purchase a prior judgment against Huesman which had been recovered at- the suit of J. A. C. Wadsworth vs. Huesman. An undivided half of the same lands (except the west half of the southwest quarter of section 35), the other half of which Mayer had already acquired at the succession sale of Messick, was, in December 1886, seized as the property of Huesman under this Wadsworth judgment and sold and bought by Mayer at the price of $175.

In this seizure an error was made — the east half of the southwest quarter of section 35, township 2 ■ south, range 6 east, was seized instead of the west half of that quarter section. So that Mayer did not buy at sheriff’s sale the West half of the southwest quarter of section 35.

The only land in section 27, township 2- south, range 6 east pretended to be sold under the Wadsworth judgment was the south half of the northwest quarter, or some eighty acres more or less. The south half of that section and north half of the' northwest quarter thereof were not included in the seizure and sale, though those lands were, as we have .seen, embraced in the purchase made by Messick at the tax sale in 1873.

Following his purchase under- the Wadsworth judgment, Mayer, for the first time, was in a position to claim the possession as owner of the whole of the 1,764 acres of land, more or less, included in the description by legal subdivisions in the act of sale by' which he acquired a half interest from the Succession of Messick and the act of sale by which he acquired the other half interest under the Wadsworth seizure, except as to the eighty acres in section 35.

In August, 1887, he sold to Mrs. Joyce J. Callaham, wife of W. J. Bentley, the northwest quarter of section 27, township 2 south, range 6 east, containing 160 acres. In point of fact, according to both the deeds by which he had acquired lands — that from the succession of Messick and that predicated on the Wadsworth judgment against Huesman— and giving effect to each deed, he owned only eighty acres in that section, to-wit: the south half of the northwest quarter.

Later, in January, 1892, and August, 1897, he sold to Lucien Guillory eighty acres, being the east half of the southwest quarter of section 3, township 2 south, range 5 east.

This piece of land was included in the description of lands in the sale to Mayer from the succession of Messick and that in the purchase made by him under the Wadsworth judgment.

Mrs. Bentley and Guillory, being made co-defendants of Mayer herein, call, the latter in warranty.

This is not a suit for any share of the widow in community property which has been sold, but for property of the community which has not been sold for debts or for any other purpose. The rule that the widow administering community property, when she sells to pay community debts, conveys title to all — not merely her husband’s interest in same — is not involved. Ricker vs. Pearson, 26 La. Ann. 391, and other authorities of the same tenor, are not applicable.

As against the demand of plaintiffs all parties defendant pleaded various prescriptions, including that of ten years.

There is an allegation in the petition that Mayer claiming to be owner took possession of the land in dispute and has been and is exercising acts of ownership over it. This suffices, so far as possession as owner is concerned, to predicate the prescription of ten years upon.

As to the other concomitant necessary to support this prescription— good faiih — we are not satisfied that Mayer in buying under the Wads-: worth judgment is to be classed as a purchaser in bad faith.

Taking this view, the prescription of ten years must prevail in part against the demand herein set up by Mary F. Waddill, now the wife of A. D. Lafargue, formerly widow of W. R. Messiek, deceased. But it cannot prevail against her co-plaintiff, the younger W. R. Messiek, who was a minor until two or three years preceding the institution of this suit. C. C. 3522, 3554.

The petition herein was filed September 24, 1897.

Mrs. Bentley bought August 6, 1887.

Her purchase was in good faith. She. acquired the possession which Mayer had. Her title from Mayer was more than ten years old when this suit was instituted. The prescription of ten years protects her as against the claim of Mrs. Lafargue. Mayer sold her 160 acres, as we have seen, in section 27. He had title to only eighty acres in that section. But, nevertheless, the prescription pleaded, which Mrs. Lafargue allowed to accrue before suing, protects her as against the demand of the former.

The effect of this is to enable Mrs. Bentley to hold as owper an undi-r vided half interest in and to the north half of the northwest quarter of section 27, township 2 south, range 6 east; and an undivided three-fourths interest in and to the south half of the northwest quarter of that section. The other undivided one-half interest of the north half of the northwest quarter, and the other undivided one-fourth interest of the south half of the northwest quarter of the section belong to W. R. Messick, the other plaintiff herein, for the prescription pleaded does not affect him.

Lucien Guillory, who bought from Mayer the east half of the southwest quarter of section 3, township 2 south, range 5 east, is entitled to hold an undivided three-fourths’ interest therein, the other undivided one-fourth interest belonging to W. R. Messick, co-plaintiff.

Mrs. Lafargue and W. R. Messick, co-plaintiffs, are entitled to recover the whole of the south half of section 27, township 2 south, range 6 east, and to be decreed owners in indivisión thereof.

The same parties (Mrs. Lafargue and Messick) are entitled to recover each an undivided one-fourth interest in and to the west half of the southwest quarter of section 35, township 2 south, range 6 east. Mayer bought an undivided half of this eighty acres at the Messick succession sale, but did not buy any part of, or interest in, same at the sale under the Wadsworth judgment against Huesman.

W. R. Messick, co-plaintiff, is entitled to recover and be decreed the owner of the undivided one-fourth of all the other lands which are described in the sale made to Mayer in the succession of Messick.

The judgment appealed from must be reversed and the case ' remanded to the court a qua for adjustment of the rights of all parties upon the basis herein laid down.

All claims in warranty and for rents, revenues, taxes paid and improvements, etc., etc., are reserved to all parties respectively, to be adjusted upon the same basis in the court below.

For the reasons assigned, it is ordered that the judgment herein-before rendered by this court be set aside, and it is now adjudged and decreed that the judgment appealed from be avoided and reversed, and the cause remanded to the court a qua to be proceeded with according to the instructions herein given and the law, costs of the lower court to be borne by defendant George L. Mayer, those of appeal equally by him and by plaintiffs herein.

Watkins, J., dissenting, handed down a separate opinion.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,237.
    Ludwig Schwan, et als. vs. William Schwan et als.

    Syllabus.
    1. A judgment, which is practically ex parte, probating a will, and putting in possession of an estate certain persons named in such will as universal legatees, does not immediately close the succession as against other persons, who claim as heirs at law and who charge that those put in possession are incapable of taking under the will. And a suit, by such claimants, brought within three months after the probate, to annul' the will, and to be decreed owner of the estate, is a matter of probate jurisdiction, cognizable in the court in which the will was ordered to be executed, and by the judgment of which the persons named as universal legatees were put in possssion.
    2. In such a case, it is within the judicial discretion of the judge, having jurisdiction of the persons and of the subject matter of the controversy, ex officio, to order the sequestration of the movable, as well as the Immovable property of the succession, and an order setting aside such sequestration, when once issued, is one which may work irreparable injury, and is therefore appealable. ,
    3. It is also competent, In such a case, for the judge to Order an Inventory to be made of the succession property, but there is no authority for an ex parte order, made in limine, directing the defendants to file sworn statements of the money and property in their possession, nor is it competent to order the sequestration of the property of a corporation, upon the averment that the decedent owned a majority, or the whole, of the stock.
    APPEAL from the Twenty-Fourth Judicial District, Parish of St. ’ Mary — Allen, J.

      D. Caffery & Son, Placide P. Sigur, Philip PL. MenU, J. Sully Martel and Wilson & Mayer for Plaintiffs, Appellants.

      Buck, Walshe & Buck, Milling & Sanders and Charles A. O’Neill for Defendants, Appellees.
   The opinion of the court was delivered by

Monroe, J.

Valentine Schwan died leaving a large estate and a will wherein Wm. Schwan, Odille Moreiro and Julia Moreiro are named as universal legatees, and Ludwig Schwan and certain other brothers and sisters of the testator are named as particular legatees. The will was probated, upon the application of the universal legatees, and ordered executed, and the applicants were sent into possession of the estate by judgment of court. Subsequently, Ludwig Schwan, and the other brothers and sisters of the testator, all of whom reside in Germany, brought suit against the universal legatees, alleging that the latter are incapable, by law, of inheriting from Valentine Schwan, and that the dispositions of his will in their favor should be annulled and petitioners recognized as heirs at law, entitled to the entire estate. They also prayed that the defendants be ordered to file in court a sworn statement of all the property of the estate in their possession, and for such conservatory orders as the court might consider necessary for the preservation of the property, pendente lite. To the petition thus filed is appended an affidavit by counsel, to the effect that he is the agent of the petitioners, who are absent from the State, and that the allegations contained therein are true, to the best of his knowledge and belief. Upon this showing, the judge a quo granted an order in the following terms, to-wit:

“The premises considered, it is hereby ordered that a judicial “sequestration of all the movable property of Valentine Schwan, “deceased, be made; and the said defendants are hereby ordered to “turn over and deliver to the sheriff of the Parish of St. Mary, Louisiana, all the movable property and effects, notes, bonds, stocks, etc., “and all books, papers, accounts, etc., belonging to said succession' “or relating in any manner thereto; and that such of said property “as is -situated in other parishes be turned over and delivered to the “sheriffs of such parishes, and be, by such sheriffs, delivered to the “sheriff of this said parish of St. Mary.
“It is further-ordered, that, within five days, William Schwan, Mrs. “Odille Moreiro, and Julia Moreiro file in this court a full, itemized, “and correct statement, verified under oath, of all the property, books, “papers and accounts of said succession, of which they have, or have “had, possession or control.
“It is further ordered that commissions issue to D. W. Stafford, a “notary public, in and for the parish of St. Mary, and to W. Morgan “Gurley, a notary public in and for the parish of Orleans, for the “taking of inventories of such property of the estate of Valentine Schwan, deceased, as may be found.”

The following day a supplemental petition was filed, alleging the existence, in New Orleans, of a corporation known as “V. Schwan & Co., Limited,” that all the stock in said corporation belonged to the decedent, that the defendants had taken possession and had elected themselves to the offices -thereof; and praying for the appointment of a judicial sequestrator, or receiver; upon which petition, the following order was made, to-wit:

' “In furtherance of the sequestration issued herein, George A. Vil“lere and Victor Von Schoeler are hereby appointed judicial sequestrators or receivers of 'V. Schwan & Co., Limited/ to take immediate “possession of all the property, books, moneys, etc., belonging thereto, “and to have the control and management thereof, pendente lite. “Let the said George A. Villere and Victor Von Schoeler, in solido, “furnish bond in the sum of thirty thousand dollars, with good and “sufficient surety, conditioned for the faithful performance of, and “discharge of, their duties as such officers.”

Under the order first above mentioned, the sheriff of the parish of St. Mary seized about $60,000.00 worth of movable property, consisting of sugar, notes, and bonds; but, thereafter, upon a rule to set aside said order, and also the order qnade on the supplemental petition, there was judgment as follows:

“It is therefore, ordered, adjudged, and decreed, that the rule filed “by the defendants herein, be sustained and made absolute as far as “the issuance of the writ of judicial sequestration and the order “appointing judicial sequestrators over the property in the possession of the corporation of ‘V. Schwan & Co./ are concerned. These “orders are hereby rescinded and vacated. It is further ordered that “the rule filed by the defendants, in so far as it demands that the “order of this court requiring them to file a statement and inventory “of the property in their possession, received by them, under the last “will and testament of Valentine Schwan, deceased, and by subsequent “orders of this court made thereunder be and the same is hereby overruled and rejected; and that said order remain in full force.”

From this judgment both parties have appealed; the plaintiffs, from so much thereof as sets aside the sequestration and rescinds the order for the appointment of a receiver for “V. Schwan & Co., Limited;” and the defendants, from so much of said judgment as maintains the order directing them to file the sworn statements, and for the taking of inventories. The defendants have moved in this court to dismiss the appeal taken by plaintiffs, and that motion will be now considered.

ON MOTION TO DISMISS.

It is said that the plaintiffs have not perfected the appeal taken by them in this: “That, as appears from the bond on' file, they claim “to have taken a suspensive appeal, whereas the court allowed a devol“utive appeal only, on the basis of the bond, in the amount of one “hundred dollars, as furnished. That the act of appellants in ignoring the order of court which' had allowed an appeal, to be devolutive “on the bond of one hundred dollars, and to be suspensive on the bond “for a different amount, was their deliberate, wilful, and intentional “act; for which reasons they should be held not to have perfected “any .appeal in accordance with the order of the court granting the “saíne, and their said appeal should be dismissed..”

The order for appeal reads as follows, to-wit:

“Motion for appeal taken up, argued, and appeal granted from the “judgment of the court vacating the writ of judicial sequestration, “made returnable to the Honorable, the Supreme Court of this State, “in accordance with law, and in ease of a devolutive appeal, bond for “costs, fixed at one hundred dollars, and, in case of suspensive appeal, “bond fixed according to law, based upon the amount set out in plaintiffs’. petition.”

Under this order, .the plaintiffs furnished a bond in.the'sum of ,one 'hundred dollars, and claimed that it entitled them to a suspensive appeal. The clerk, in receiving it, however, wrote as follows upon its face: '“Rec’d filed May 24, ’99. But not approved or accepted as “suspénsive appeal bond; should be $450,000 in this case, according to “law: (Signed:) John R. Parkerson, Clerk.”

Thereafter an effort was made by defendants to obtain a ruling from the judge a quo to the effect that the appeal, as taken, operated devolutively only; and, while their application was pending, they made a similar application to this court,' which latter was denied, on the ground that the matter was pending before the judge a quo, and that he had jurisdiction, primarily, to determine the question. State ex rel. Schwan vs. Judge, 51st Ann., 1842.

For the' puipdse of the immediate question before us, it is immaterial whether the judge a quo held that the bond, as filed, entitled the appellants to a suspensive, or to a devolutive appeal, or whether he acted upon the matter at all. The appeal is now in this court, and, whether suspensive or devolutive, the appellants are not to be denied a hearing upon it because of the construction placed by them upon the order granting it. If they were in error in assuming that they were entitled to a suspensive, rather than a devolutive appeal, upon filing a bond for a hundred dollars, they did not thereby forfeit their right to the devolutive appeal to which, it is conceded, they were entitled upon the filing of such bond, provided that the judgment was, in its nature, appealable. The case thus presented is easily distinguishable from that of State ex rel. Ella Smith vs. Judge, 29 Ann., 839, to which we are referred; and in which it appeared that an order had been granted, in the alternative, for a suspensive and a devolutive appeal; and that the appellant, being unable to furnish bond required for the suspensive appeal gave bond in the amount required for the devolutive appeal. It was held that she could not thereafter take a suspensive appeal, for the reason that two appeals do not lie simultaneously from the same judgment.

The right to one appeal, however, is favored, and in the matter of the Succession of Keller and Wife, 39 Ann., 579, where the pnly application made, and the only order granted was for a suspensive appeal, it was held that the bond, though not filed in time to entitle the appellant to such appeal, would serve to sustain a devolutive appeal.

It is further said, however, that the judgment setting aside the judicial sequestration is not reviewable on appeal; (1) because the original order for the sequestration was an absolute nullity, and its recission can, therefore, work no irreparable injury; (2) because, if it be held that it was within the discretion of the judge a quo to order the sequestration, it was equally within his discretion to set it aside, and such exercise of discretionary power can work no irreparable injury on appeal; and (3) because the judge a quo having acted ex proprio motu in ordering the sequestration, his setting the same aside left no contention before him, and, for this court to reinstate the sequestration, would be to exercise, original jurisdiction.

Considering these propositions in the order in which they are stated: — The judge a quo had the right to hear and determine the case as presented to him. His competency, as to the persons who were before him, and as to the subject matter, is not questioned. %jiether it was proper for him to make the particular, interlocutory, order which we are now considering was a question which, as a part of the whole case, the obligations of his position compelled him to decide, and he was, of necessity, vested with jurisdiction in the premises. “Juris“diction means the power of him who has the right of judging, etc.” C. P. 79, and, the competency of the judge quoad the subject matter and the parties litigant being 'conceded it includes not only the power expressly conferred by law, but all such power as may be necessary to the full exercise and enjoyment of that expressly conferred. C. P. 130; 877; C. C. 21.

There are many instances in our jurisprudence in which jurisdiction, or power, predicated “on the right of judging” has been exercised by the courts, though not expressly given by law. Thus, more than fifty years ago, in Gridley vs. Connor, 2 Ann., 87, Chief Justice Eustis, as the organ of this court, said:

“We consider the power of the court to appoint a receiver in a “case of this kind to be necessary, for the purpose of effecting the “object of this suit, which is the liquidation and settlement of a partnership, and it falls within that incidental class of powers which “courts have full power to exercise. Story on Partnership, par. 333, “C. C., Art. 21. Our courts are not organized with the proper machinery for the settlement of complicated partnership concerns. They “are, still, obliged to determine and conclude matters of this kind, “and they have the powers necessary for the exercise of their jurisdiction, although such powers may not be expressly given them by law.” C. P.130.

In Brown vs. Insurance Co., 3 Ann., 177, Mr. Justice Eost, after quoting from an opinion of the Lord Chancellor of England, to the effect that the courts of chancery might appoint receivers for corporations, said:

“Under the equity powers vested in our courts and the imperative “command of our law, that, in cases not provided for, the judge shall “proceed and decide according to equity, they might adopt a similar “course if it became necessary to prevent a failure of justice.”

In Eltringham vs. Clark & Pringle, 49 Ann., 343, it was said:

“There is á power in the courts, ex officio, to direct the sequestration of property; to protect the rights of litigants.” See, also, Liquidation of Grant & Jung Furniture Co., Limited, 51 Ann., 1284; State ex rel. Southern Bank vs. Judge, 22 Ann., 581.

It is undeniable that the appointment of a receiver is practically a sequestration of the property of the partnership or corporation for the liquidation of which the receiver is appointed. And there are many other decisions, predicated upon the statutory law of this State, illustrative of the proposition -that the right to “judge” in a particular case, carries with it the power, or jurisdiction, necessary to .the full and effective exercise of such right.

The following provisions of the Code of Practice, however, bear more directly upon the question at issue, than those to which reference has been made:

“Article 273. Judicial sequestration is generally ordered only at “the request of the parties to a, suit; there are cases nevertheless, “where it is decreed by the court without such request, or in consequence of the execution of a judgment. * * *
“Art. 274. The court may order, ex officio, the sequestration of real property in suits where the ownership of such property is in “dispute, and where one of the contending parties does not seem to “have a more apparent right to the possession than the others. In “such eases, sequestration may be ordered to continue until the matter “of ownership shall have been decided.”

The learned counsel for the defendant insists that the language, used in Art. 273, “there are cases nevertheless, where it is decreed by the court without such request,” is governed and controlled by the provisions of Art. 274, and that the only eases in which, under Art. 273, the sequestration may be ordered by the court, without the request of the parties, are those provided for in Art. 274. In other words that, taking 'the two articles together, the court can, ex officio, order only the sequestration of real property, under the circumstances mentioned in Art. 274.

Such is the conclusion which the learned counsel reaches by comparing the language of the two articles, and construing it in the light of a wide information and experience. But the learned counsel goes further. He says that the order by which the judge a quo expressed his conclusion upon the subject, a conclusion arrived at in the same way, was not only erroneous, but that it was absolutely null and void. And yet, the judge, in making the order acted under the obligation of an imperative duty to determine impartially, and exercised the power “of him who had the right to judge.”

Passing from this view of the subject; it must be admitted that if the interpretation contended for be correct the result is unsatisfactory. In the first place, the language quoted from Art. 273 is rendered useless, is left without application of its own, and serves but to confuse the idea expressed in Art 274. In the next place, it may bring about this condition- of affairs, viz: A suit may be brought which involves the ownership of a tract of land worth $100.00 and of $10,-000.00 in currency. In the opinion of the judge, the one litigant has no more, apparent, right to the possession of land or currency than the other, and both land and currency are within reach of the process of the court. Upon the theory propounded, the judge may order the sequestration of the land, which, by no possibility, can be removed beyond his jurisdiction, but is powerless to lay hold of the money, which, of all species' 'of property, most readily takes wings, and he is obliged to remain quiescent, with the knowledge that the main object of the suit is being defeated by its removal. That such results are not altogether accepted, may be seen from the ruling of this court. In Succession of Walker, 32 Ann., 321, it appeared that the decedent, Jennie Ames, had left a will whereby she appointed her surviving husband, Samuel Walker, her executor, and named him as tutor of her minor child by a previous marriage. William P. Ames, a paternal uncle of the minor, opposed Walker’s confirmation as executor, and also opposed his appointment as tutor, on the grounds that the mother had lost the tutorship by reason of her second marriage and had no capacity to make the appointment; and he prayed to be appointed tutor ad hoc, and for a judicial sequestration of the movable property of the succession, pending the litigation; and the sequestration was ordered. In this court, it was said:

“Objection was made to the right or power of Ames to provoke a “judicial sequestration of the property. We are very clear that his “power was ample. He is the nearest male relation., and bound, under “penalty of incurring damages, to take charge of the tutorship, Civil “Code, Art.-286, and was therefore bound, in applying for the tutor“ship, -to take at once, any conservatory measures that were necessary “for the protection of the minor’s property.”

In State ex rel. Hans vs. Judge, 36th Ann., 768, it appeared that the judge a quo, upon its being shown that a natural tutor was neglecting his wards and squandering their estate, ordered that he be suspended, that an action be brought for his removal, and that certain securities belonging to the minors be deposited, in the meanwhile, in the judicial depository. This court said, on application for prohibition:

“The course pursued by the district judge was dictated by a proper “sense and appreciation of his sworn duties, as the tutor of tutors. “This is not the first instance in which the exercise of extraordinary “powers was sanctioned by this court on the part of a judge similarly situated. 32nd A., 324, Succession of Walker.”

In the -matter of the succession of Carcagno, 43rd A., 1151, the judge a quo had ordered a bank, in which a tin box was deposited, to hold the same, upon the representation that it Contained property belonging to the succession, although the box was deposited in the name of a third person, who claimed to be the owner. Upon an appeal from an order for the taking of an inventory of the contents of the box, and for the delivery of the key, this court said:

“Under the terms of the order, i-ts only effect was to hold the box where it was until its contents 'were ascertained; and when the possessor prevented its opening, the box simply remained in the custody of the bank until further order of the court. The effect in that case, would have been simply that of a judicial sequestration, which we think, in such a case, would have been authorized, under Art. 273 of the Code of Practice, at least until the succession .could be represented by the appointment of an administrator, who could invoke the proper conservatory process to protect the interest of the succession.”

In Louque vs. Succession of Saloy, 45th Ann., 1386, it was held that the claimant, and owner of the box which was the subject of controversy in the case last cited, was not entitled to damages for the sequestration of the box, upon its being established that it contained nothing belonging- to the succession.

In Young vs. Railroad Company, 24th Ann., 40, it was held that the appointment of a sequestrator to take charge of the railroad, its appliances, and appurtenances, after’ the company had obtained the dissolution, on bond, of an injunction sued out by the plaintiff, was unnecessary;, but, neither the authority of the judge, nor the propriety of such appointment were otherwise questioned. This court said: “The Railroad Company having entered.into bond in favor of their adversary, to secure him against loss or damage that might result from their retaining possession of the road pending the suit and, not perceiving that anything subsequently occurred to weaken that security, we do not -think a state of things existed that authorized the judge, ex officio, to appoint a judicial sequestrator.”

These cases can be regarded in no other light than as recognitions of the power, existing in trial courts, to order the judicial sequestratration of movable, as well as immovable prope. "y, when the exigencies of a particular case require it, and where such a course is necessary to the exercise of the jurisdiction conferred upon them.

Article 1961, Code Napoleon, contains provisions not dissimilar to those cited from our Code of Practice, and the French authorities sanction the idea that, in controversies over successions, the sequestration of the property, movable and immovable, may be ordered. Fuzier-Herman, Vol. 4, p. 92. Paul Pout, Vol. 8, p. 277.

Our Civil Code, in the articles relating to the affixing of seals “on the effects of successions” provides that it may be ordered by the judge, at the request of anyone who pretends to have an interest, or ex officio, when the presumptive heirs of the .deceased do not reside in the place where he died, or any of them happen to be absent and the officer who affixes the seals is required to appoint a “guardian * * to take care of the seals and of the effects,” and, thereafter, upon the raising of the seals, the judge is required to order an inventory to be made. C. C. 1085, 1090.

And the appointment of the “guardian,” is, in the contemplation of the law, the judicial sequestration, or deposit of the property placed in his charge. C. C. 2979, 2980, 2981. -We, therefore, conclude that, whether we invoke the general provisions of the law, as contained in Arts. 130 and 877 of the Code of Practice, and Art. 21 of the Civil Code, .or the more particular provisions of Art. 273 of the Code of Practice, or of Arts. 1085, 1090 and 2979 et seq. of the Civil Code, there was no' lack of jurisdiction in the judge a quo, to order, ex officio, the sequestration of the succession property, movable and immovable, and that the only question to be determined is whether, “having the right to judge,” he judged correctly quoad the case in which he exercised that right? But it is said, if the question whether he should ex officio order the sequestration was a matter within the discretion of the judge, it was equally within his discretion to determine whether he would set the sequestration aside, and that, having exercised a discretion vested in him by law, his action is not reviewable on appeal. This view is, however, founded on misapprehension. The right of appeal, in such casesj is not affected adversely by the fact that the order, or judgment, from which the appeal' is sought, is within the discretion of the judge by whom it is made. On the contrary, where-such order or judgment is discretionary, the remedy, if the case is one which requires a remedy, is by appeal, rather than by mandamus or prohibition. State ex rel. Benton vs Judge, 26th Ann., 116; State ex rel, R. R. Co. vs. Judge, 36th Ann., 394 State ex rel. Roth vs. Judge, 36th Ann., 49; State ex rel. Johnson vs. Judge, 40th Ann., 854; State ex rel. Iron Works vs. Judge, 44th Ann., 1090. Whether the ease is one which requires a remedy, since the order or judgment, in question, was interlocutory, depends upon whether the resulting injury is, or may be, irreparable; and whether the injury is, in any given case, irreparable, this court has said is a matter concerning which it is difficult to lay down any precise rule, but that the general principle is, 'that an injury, the damage from which is merely in the nature of a pecuniary loss, and can be fairly and fully compensated in money, is a reparable injury, for which a bond for a sufficient amount, and properly secured, would furnish all adequate relief. Crescent, Etc., vs. Police Jury, 32 Ann., 1194; Puckett vs. Judge, 39th Ann., 901; State ex rel. Oil Mills vs. Judge, 50th Ann., 273.

But there are some cases where the bond does not afford adequate relief, and in Eltringham vs. Clark & Pringle, 49th Ann., 540, the distinction is made between a ease where a sequestration is issued in a suit for the recovery of a debt secured by a privilege, and the property is released on bond, and a ease where the plaintiff resorts to the writ for the protection of a right of property; and it is held that, in the latter case, the dissolution of the writ, even on bond, may work irreparable injury. Where, as in the instant ease, the writ is dissolved on motion, and without bond, the' weight of authority is decidedly in favor of the proposition that the injury may be irreparable, and that an appeal should be allowed. See Eltringham vs. Clark & Pringle (cited supra); State vs. Judge, 9th M., 301; Johnson vs. Johnson, 13th Ann., 581; White & Trufant vs. Casenave, 14th Ann., 57; State ex rel. Street vs. Judge, 35th Ann., 515; State ex rel. Roth vs. Judge, 37th Ann., 846; State ex rel. Roth vs. Judge, 38th Ann., 49 ; State ex rel. Gay vs. Judge, 25th Ann., 299; in several of which cases an appeal was allowed, although bond had been given.

It is further said, in behalf of the motion to dismiss, that, having ordered the sequestration, and having dissolved i't, ex officio, and in the exercise of his judicial discretion, the latter order left no contention before the court, and nothing to appeal from. If it be true, as we have found it to be, that irreparable injury may result from the interlocutory order made by a judge in the exercise of his judicial discretion, and that the remedy in such case is by appeal (State ex rel. Roth vs. Judge, 38th Ann., 49) this proposition is answered.

For these reasons, we are of opinion that the motion to dismiss should be denied.

On the Merits. — (Plaintiff’s Appeal.)

The questions now to be considered are, whether there is error in the judgment appealed from in so far as it dissolves the sequestration, ordered ex officio by the judge, of the movable property of the succession, and rescinds the order, made by him, appointing judicial sequestrators of the property of “V. Schwan & Co., Limited.”

The first of these questions should, we think, be answered in the affirmative, the second in the negative.

It is claimed on behalf of the defendants that the succession was closed by the judgment putting them in possession. It would make no difference, for the purposes of the question; “had the district judge jurisdiction, ex officio, to order the sequestration of the property in controversy?” whether it was closed or not, for, as we have seen, orders having the same effect, have been sanctioned where there was no question of successison involved. But it is not universally true that the ex parte judgment putting heirs in possession closes the succession. It has been held by this court in the matter of the Succession of Bray, 50th Ann., 1209, and in Succession of Judah Hart, 52nd Ann., 364, that such an order does not close. the successions as against creditors; and, in view of Art. 1671, Civil Code, it would be difficult to find authority for closing a succession in that way against a particular legatee to whom a movable legacy is due and unpaid, and where provision therefor has not been made, as required by 'that article.

The judgments in the cases last above cited are based upon the conclusion that, inasmuch as the law contemplates that creditors shall be afforded an opportunity to be heard before the succession of their debtor is closed against them, an ex parte order, obtained by heirs of. such debtor, putting them in possession of his estate, does not conclude or affect them, at all events, if obtained within the three months allowed for the action for separation of patrimony.

If these conclusions be correct, upon what principle of logic or law can it b.e said that a succession- is closed instantly, upon one who claims to be the heir, entitled to the entire estate, and who charges that the person who had been put in possession, by an ex parte order, is not only not the heir, but is prohibited from, inheriting from the' decedent by a positive law, founded in public policy of the State? To sustain this proposition, we should have to be prepared to hold that if a man should die leaving his estate to an illegitimate son, to the exclusion of a legitimate son, and the former, with the will in his possession, was able to out speed his brother to the court house, the latter might reach there, breathless, a few minutes later, to find the succession of his father closed.

It is well settled that the probate of a will, in common form, and the order for its execution are only preliminary proceedings, which are not binding upon those who are not parties to them. O’Donnegan vs. Knox, 11 La. 388; Robert vs. Allier’s Agent, 17 th La., 14; Rachal vs. Rachal, 1 R., 116; Abston vs. Abston, 15th Ann., 137; and the most that can be claimed for such proceedings is that they make a prima facie case in favor of the validity of the will. Eox vs. McDonough’s Succession, 18th Ann., 44; Succession of Gaines, 38th Ann., 123. The reason that such proceedings are not binding upon those who are not parties to them is because they are npt parties to -them. And the same reason applies with equal force to the order putting in possession. To say that the judgment putting the heirs in possession closes the succession in a case where, immediately upon the heels of the judgment, there comes one who was not made a party thereto, but who claims to be the heir, and who charges that the person put in possession, as heir, is prohibited by law from claiming in that capacity; is a flagrant begging of the question. If the person in possession is not the heir, the succession is not closed, and in a case, such as this, where within much less than three months, from the date of the judgment putting in possession, the capacity, to inherit, of the beneficiaries of the judgment and of the order probating the will upon which the judgment rests, is attacked, the succession is not closed for the purposes of such attack.

This opinion, we think, is sustained by reason and authority. In Blasini vs. Succession of Blasini, 30th Ann., 1389, the widow and children, by second marriage, had been put in possession of the succession of the deceased husband and father, agreeably to the terms of his will. About two months later, plaintiffs, claiming to be the children, and forced heirs of the decedent by a previous marriage, brought suit attacking the will in so far as it deprived them of their legitime, and it was held that “a suit by forced heirs for recognition, and to annul, in whole, or in part, a testamentary disposition, is of probate jurisdiction; and it falls within the cognizance of the court in which the will has been admitted to probate and has been executed.”

In Succession of Hoover vs. York & Hoover, 30th Ann., 754, it was said: “The nullity of the proceedings- for the probate of the will, and of orders in execution of it, must be sued for in the court which rendered them * * * This position is, however, so rudimental, that citation of authority is unnecessary.”

In Harty et als. vs. Harty, 8th N. S., 520, a suit was brought in the probate court by the heirs of Simon Harty, after attaining majority, to annul a judgment of adjudication of certain property, and for the recovery of damages against their former tutrix and under tutor. There was an exception to the jurisdiction of the court, in disposing of which, Matthews, J., said: “The adjudication of which plaintiffs complain in the present suit, was clearly within the province of the court of probates, and the question now is whether its power extends to a revision of that judgment by means of an action to annul or rescind it. Although the Code of Practice makes a distinction between the nullity and the recission of judgments, and establishes rules somewhat different in respect to each; yet they are so identical in their effects, that they may be properly considered together in a legal decision. According to Art. 608, the nullity of a judgment “may be demanded'from the same,” etc. By “Art. 616, the action for rescinding a judgment must be pursued by presenting a petition to the court by which said, judgment was rendered. * * * The court below had jurisdiction of the case in its origin, as relating to a succession, ,and this jurisdiction is extended by Art. 616, aforecited, to a revision of its former judgment.”

“In State ex rel. Chandler vs. Ellis, Judge, 43 Ann., 825, it appears that a suit had been brought, in the Civil District Court, to annul a judgment which had been rendered by the judge of ‘Division A.’ The suit to annul, however, fell, by allotment, to ‘Division E,’ the presiding judge of which ordered it transferred to ‘Division A,’ where it was dismissed. This court said, upon application for certiorari, etc.:

“The division had jurisdiction over the suit to annul, so much so, that no other court could entertain it and pass upon its merits, to affect, in any way, the judgment attacked.”

It is true that there are authorities, and we are referred to a number of them, by counsel for the plaintiffs, which hold that, when heirs are put in possession, the succession is closed and the jurisdiction of the probate court divested. But the question in this case is, whether the heirs have been put in possession; the allegations of the petition being, that the defendants, who obtained the order probating the wilK of Valentine Schwan, and putting them in possession of his estate, are not his heirs. And the prayer of the petition is, that the dispositions of the will in favor of such defendants be annulled. The plaintiffs also allege that they have not been paid .the special movable legacies to which they are entitled.

As the matter stands, then, the defendants, in a proceeding to which the plaintiffs were not made parties, and of which they had no notice, were put in possession of the entire estate of the deceased, including some sixty thousand dollars worth of movable property, such as sugar, notes, bonds, etc. Shortly thereafter, the plaintiffs presented themselves, and made a showing, equally entitled to consideration, to the effect that, under the law, they are the heirs of the decedent, and are entitled to the estate, to the exclusion of the defendants. Under these circumstances, by what rule is the cpurt to determine that the one set of litigants is entitled to the possession of the property, with the power of converting, or removing it from the jurisdiction, in preference to the other? We have seen that, to determine the question upon the basis of priority of appearance in court, would be very unsafe, and in the instant case, it would be particularly unfair, because the defendants lived in the parish, whilst the plaintiffs lived in Germany, when the succession was opened.

Being of opinion, therefore, that the succession of .Valentine Schwan is still open for the purposes of this suit, and that the matter is one of probate jurisdiction, and, the circumstances of the case being such as to warrant the issuance, by the judge a quo, acting .e£ officio, of the sequestration, as ordered by him, our conclusion is that the setting aside of said sequestration was an error, and that the judgment appealed from should, in that respect, be reversed.

Upon the question of the attempted seizure of the assets of the corporation known as V. Schwan & Co.," Limited, domiciled in the parish of Orleans, we think that the sequestration was properly dissolved, since the corporation is a distinct entity and the ownership of shares of stock therein, whether few or many, did not constitute Schwan the owner of the property of the corporation.

On the Merits. — (Appeal by Defendants.)

Defendants-complain of the judgment appealed from in so far as it fails to rescind the order directing them to file a sworn statement of the property in their possession, and in so far as it directs the taking of an inventory of the property of the succession.

As to the first of these questions, we think their position well taken. Our law contains provisions whereby the conscience of a litigant may be probed, and his testimony taken, in the interest of his opponent. But we know of no authority whereby'a plaintiff, suing for the recovery of property or money, can, in limine litis, require a defendant to state under oath, whether he have the one, or owe the other.

As to the inventory, we think, for reasons which sufficiently appear in this opinion, that the order for the -taking of the same was competent and proper, and that the judge a quo was right in refusing to rescind it.

It is therefore ordered, adjudged, and decreed that the motion-herein filed on behalf of the defendants to dismiss plaintiff’s appeal be denied; that the judgment appealed from be annulled, avoided, and reversed, in so far as it sets aside the writ of judicial sequestration, issued ex officio, by the judge a quo, and in so far as it rejects' the demand of the defendants for the rescission of the order directing them to file a sworn statement of property in their possession; and in all other respects that said judgment be affirmed. It is further ordered, adjudged and decreed, that said judicial sequestration be held -to be.revived and reinstated by virtue of this judgment, in so far as may be practicable in the present condition of the case; and it is further ordered that the defendants be relieved from filing the sworn statement of property in their possession as required by the order of the district judge.

It is further ordered that the costs -of this appeal be borne by the parties litigant in equal proportions.

Rehearing refused.