
    John P. Walworth et al., Trustees, v. Succession of John Snodgrass et al.
    Although an action to subject propcrty>t*o the payment of the debts of the succession, on the ground that the possessor holds under simulated conveyances, should be brought by the administrator, and not by tho creditors of the deceased, yet where the creditors sues both the administrator and the fraudulent possessor, and the administrator adopts the prayer of the plaintiffs against his codefendaut, and asks that the property held by tho latter be restored to the succession and sold for the payment of debts in due course of administration : in such a case, the creditors are competent to sue.
    An answer was filed after the exception had been taken to the plaintiffs* action. Held: In determining* on the exception, the court was bound to take cognizance of the pleadings as „ they then stood.
    
      APPEAL from the District Court of the parish of Tensas, Richardson, J.
    
    Montgomery, for plaintiffs.
    
      Sami. R. Walker and A. N. Ogden, for defendants, contended:
    The suit is one brought on behalf of the succession, by one who shows no right to represent it, and cannot, therefore, maintain the action. The principle has been several times recognized by our courts, that an individual creditor is without right or capacity to exercise rights properly belonging only to the legal representatives of the estate. Vienne v.. Boissier, 10 M. R. 359. Miles Juclson, adm., v. Connolly and Husband, 5th Ann. 400. In support of the same doctrine, we refer to Story’s Equity Pleadings, par. 185, and to 4th Vesey’s Rep. 665.
   By the court:

Eustis, C. J.

The Court of the Tenth District dismissed the petition of the plaintiffs so far as relates to the defendant, John W. Snodgrass, on an exception taken by him to the plaintiffs’ action. The plaintiffs have appealed.

The plaintiffs, being judgment creditors of the late John Snodgrass, whose succession is represented by L. Vincent Reeves, administrator, brought their suit to subject certain property alleged to belong to the succession of the deceased, but to be held by his son, J. W. Snodgrass, under certain fraudulent and simulated conveyances, to the payment of their judgments. J. W. Snodgrass excepted to the action, on the ground that it could only be maintained in the name of the representative of the succession, and so the district judge held. The case of Vienne v. Bossier, 10 M. R. 359, supports the general principle on which the decision rests.

This case is different from that cited, and is somewhat complicated by the fact that the administrator of the succession was made a party defendant to the suit, for the purpose of obtaining judgment against the succession on a judgment rendered against Snodgrass, the deceased, in Mississippi. In his answer, the administrator joins the plaintiffs in their prayer to subject the property in the hands of Snodgrass, the son, to the debts .of the father, and asks that it be restored to the succession and sold for the payment of its debts in due course of administration. This answer was filed after the exception was taken to the plaintiffs’ action. In determining on the exceptio n, the district judge was bound to take cognizance of the pleadings as they then stood. The administrator was then in court, asserting the plaintiffs’ right of action for the benefit of all the creditors. Besides, the party excepting did not ask the dismissal of the petition on the exception being sustained. We think the district court erred, but the plaintiffs ought to pay the costs in the district court.

The judgment of the district court is therefore reversed and the case remanded for further proceedings, the appellee paying the costs of this appeal, and the plaintiffs the costs in the district court.

Application for re-hearing refused.  