
    
      L. & M. CRESSE vs. MARIGNY.
    
    East’n. District.
    
      Dec. 1815.
    Appeal from the court of the first district.
    Children are not suable as heirs, till they accept the inheritance.
    The petition stated that the plaintiffs are the owners of a slave, whom they inherited from their grandmother, and who was unlawfully detained by the defendant. The answer denied all the facts, and averred that the defendant purchased the slave at a public auction, from the proper officer.
    There was a verdict and judgment for the plaintiffs, and the defendant appealed.
    The statement of facts shewed that the plaintiffs proved themselves to be the sole owners of the slave in question, having inherited him from their grandmother,—that he remained a considerable time before the death of Joseph Cresse, their father, in his possession,—that the plaintiffs being out of the state at the death of their father, the slave was inventoried as his property, by order of the court of probates, and afterwards sold with the rest of his estate, by the register of wills, and purchased by the defendant. By a copy of the record of the court of probates which accompanied the statement of facts, as part of it, it appeared that M. Cresse, one of the plaintiffs, instituted a suit for her share of the estate of her grandmother, which had been administered by her father.
    
      Moreau for the defendant.
    The plaintiffs are not entitled to recover from the defendant, who has acquired a good title. A sale by the register of wills, by order of the parish judge, is a judicial sale, by which the property passes. Not so a sale by the sheriff under an execution: for he has authority to take the goods of the defendant only, and if he takes those of a third person, he is a trespasser.
    The law makes it the duty of the parish judge, on being informed of the death of a person, in the absence of his heir, to affix his seal on his effects, and afterwards sell them. Civil Code, 172, art. 124—128. The effects here spoken of, must be those which are apparently his—those found in his possession,—unclaimed by any other person. The judge has no criterion by which to regulate his conduct in this respect: if he finds property, over which the deceased acted as owner, he must sell it, though there be no positive proof of his ownership—no means of ascertaining whether that property be absolute or special only. When the property is thus put up to sale, the person to whom it is adjudged acquires a complete title thereto.
    
      The sale by a judicial adjudication of a piece of property, found among the estate of a deceased person, vests it in the purchaser: the owner when known is only entitled to the proceeds. Pothier, Traité de Propriété, n. 252. The goods of a third person sold among those of a bankrupt, pass likewise to the purchaser. Ord. Bilb. b. 16, art. 8. The adjudication of a stray destroys the right of the owner who has not claimed it before it was adjudged. Pothier, Traité Propriété, n. 16.
    But if the property did not pass by the adjudication to the defendant, still the plaintiffs are not receivable to claim the slave from him,—at least without tendering the price: for the defendant is a creditor of the estate for the sum paid, and the plaintiffs are clearly his debtors thereof, unless they expressly renounce the inheritance of their father: and this, it is too late for one of them at least to do, for she has brought suit for part of his estate.
    On the death of the father, the law casts the inheritance on his children, and destroys by confusion any right which they may have against his estate, unless they renounce the inheritance, or accept it with the benefit of an inventory. Pothier on Obligations, n. 605, 607. The person called by law to the inheritance is heir, as soon as the ancestor dies, unless he renounces or accepts with the benefit of an inventory: and this renunciation is not to be presumed; it must be formal, Civil Code, 164, art. 88. If he do neither, he is liable at once. If he accept with the benefit of an inventory, no judgment can be had against him, if he has done no act of heirship during the delays which the law grants to him to make the inventory, or deliberate. Id. 166, art. 102.
    
    Even in cases, in which the father is not the debtor of his children, but is bound to indemnify their debtor, confusion does indirectly take place. They can no longer sue their debtor, having succeeded to the obligation of the father to indemnify him, Pothier, Ob. n. 611. This is in order to avoid circuity of actions. Here, the estate of the plaintiff's father, if they recover, will be bound to indemnify the defendant.
    
      Hennen for the plaintiffs.
    The plaintiffs have shewn completely, that they had once the legal title to the slave, the object of the present suit: they cannot, therefore, be deprived of that title, but by their own act or that of the law.
    It is not pretended that they have done any act, which would deprive them of their property. Has the law destroyed their title? Assuredly not. The law is for the protection of rights: and, as a general rule declares that id quod nostrum est, sine facto nostro ad alium transferri non potest, ff. 50, 17, 11. The administration, which the law gives, is of the property of the deceased, not of that which may be found in his possession. It authorises the sale of his estate, and not that of third persons. Every article of the Civil Code, which treats on the subject, implies this.
   Derbigny, J.

delivered the opinion of the court. The appellant resists this claim of the appellees on two grounds. He alleges first, as a general principle, that judicial adjudications do, in some cases, transfer the property even of third persons, and that this is one of the cases to which the rule is applicable. In support of this position, he quoted the authority of Pothier, who in his Traite de la Propriete, n. 76,251,152, asserts that even where the goods of a third person have been advertised for sale, if such a third person does not oppose the sale in due time, the right of property passes to the purchaser.

Without questioning the correctness of Pothier’s assertion, it is obvious that a rule so widely swerving from the principles of natural law, must have been established by positive provision, and cannot extend beyond the country for which it was made. By that provision a delay is fixed within which the third person, whose property is about to be sold, must come forward and oppose the sale. After that delay he forfeits his right, as a punishment for his neglect to obey the laws of his country. The necessity of quieting purchasers of property exposed to sale by order of government, may be pleaded in justification of such a disposition: but, nothing short of some such positive law among us could justify this court in recognizing a sale of this nature as capable of transferring the right of property.—Neither could the sale, in such case, be deemed valid and binding upon the real owner, unless it were shown that the necessary delay was allowed for him to come forward and oppose the sale, and that he neglected to do it. We find recognised, on the contrary, that after the judicial adjudication of property sold, as the property of a defendant, while it belonged to a third person, such a third person may recover his property by suit. Cur. Phil. Remate. Febrero, Juicios, b. 3. sect. 2.

The second ground of defence of the appellant is, that should the present sale be found not to have transferred any right of property to the buyer, yet the appellees ought not to recover, because they are the heirs of a person, among whose estate the property in dispute was sold, and as such bound to make that sale good to the purchaser. He further contends that confusion has taken place here in their persons, as being, at the same time, heirs and creditors of their father.

Without considering whether heirs, as they are obliged to guarantee the deeds of their ancestors, are likewise bound to make good the acts, which are done after their death, by those who dispose of their estates,—nor whether this case, in which the appellees appear, not as creditors of their father, but as owners of certain slaves, who remained in his custody till after his death, can be viewed as a case in which confusion has blended in the same person the characters of debtor and creditor, let us say at once, that there is no evidence that the appellees are or intended to be heirs of Joseph Cresse.

One of them was represented as having done an act of heirship, because she applied to the court of probates for her share of the inheritance of her grandmother, which had been administered by her father till his death. Nothing, in this application gives room even to presume, that she intended to accept the succession of her father. On the contrary, the caution with which she confines herself to the demand of her share of her grandmother's estate, is an evidence of her intention not to meddle with the succession of her father. Both the appellees are then in the same situation : they have done no act of heirship, and are at liberty to accept or to renounce the inheritance of Joseph Cresse.

But, it is said that until they renounce in due form, they are to be considered so far as heirs, as to be deemed inadmissible in any demand incompatible with the character of heirs. It is not easy to conceive why it should be so. The principle is, that until the acceptance or re- " nunciation, the inheritance is to be consider- “ ed as a fictitious being, representing in every "respect the deceased.” In the meanwhile there is no heir, and we see no reason why the persons, who have a right to refuse to be heirs should be considered as such before they have made known their intention, and should be deprived of the rights which they hold independently of their character of heirs.

It is therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  