
    Deschapelles et al. v. Labarre.
    A confirmation by the heirs of the donor of a donation void for matters of form, will preclude them from subsequently opposing such vices of form. C. C. 3254.
    The tutrix and co-tutor of a minor, to whom a donation had been made void in form, but which was subsequently ratified by the heirs of the donor, cannot, by consenting to a restitution of its value, alienate what had Become the property of the minor.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J. The facts of this case are' stated in the opinion of the lower court, as follows:
    “ By article 2254 of the Civil Code a donation void in form may be confirmed and ratified by the heirs of the donor: and such confirmation and ratification will preclude them from pleading, thereafter, the vices of form in the donation.
    “ On the 28th February, 1811, the common ancestor of plaintiffs and defendant, made to his son, the ancestor of defendant, a donation inter vivos, en avancemcnt d’hóirie, of the property mentioned in the petition,- estimated in said petition at $1000. This donation, being, by private act, was defective in form. The donor and donee both died in the year 1814. The heirs of the donor entered into a partnership, of which the accounts were kept in a book offered in evidence by plaintiffs. From this book it appears that, the step-father of the defendant, F. Fazende, paid to the heirs of the donor, in the year 1816. the estimated value of the property donated as above, to-wit : $1000. This collation is approved by the signature of ail the heirs to the account. Afterwards, in the year 1822, the step-father of the defendant, F. Fazende, deemed it expedient to require, at the hands of the other heirs of the donor, the re-payment of the sum of $1000, paid by Fazende six years before to those heirs, upon-the ground that the donation had been pronounced null by a lawyer consulted-on that subject; and the money was accordingly refunded by those heirs, tho present plaintiffs. From 1822 to 1846, the date of the institution of this suit, the plaintiffs do not seem to have made any claim- to the property; but, on tho contrary, have recognized, by witnessing defendant’s marriage contract, the-right of defendant to the ownership of said property.
    Various questions of prescription, and of possession, as connected therewith, have been raised, which I consider it unnecessary to examine. The collation.of the value of the land conveyed by the informal donation — a collation - made in accordance with the views of the donor, and accepted by his heirs after his death, was a confirmation of the donation, which involved, in the words of the Code, the renunciation by those heirs of all right to object to the form of the donation. Tho title of the heirs of the donee to the property donated wae rendered perfect by confirmation, in 1816. The tutrix of the heirs of the donee, and her second husband and co-tutor, were totally incompetent to-alienate the property of their wards, by consenting to a restilution of the value of the property, in 1822. That act was nu’il as to the minors D'Orgenoy, produced no legal effect against them, and, if we may judge by the subsequent acts of the parties, it is doubtful whether ever they supposed that it produced .any legal effect. This action must, therefore, fail.
    “Butthe counsel of plaintiffs have urged upon me the propriety of allowing them the sum of §1000, in case I should come to the conclusion that they could not recover the land; for, say they, it would be unjust that the defendant should have both the land and its price. There is no proof before us that this sum of §1000 overcame into the hands of the defendant. Were theie such proof on the record, I should agree with the counsel. But the record shows only a payment made to the tutrix and co-tutor of the defendant, her mother and stepfather, That payment was improperly made, and without legal consideration. Those who received it, or their representatives, should make restitution. But I cannot adsume, without proof, that this payment has inured, in whole or in part, to the benefit of the defendant. Judgment for defendant, with costs.”
    From this judgment the plaintiff appealed.
    
      Roman and Seghers', for the appellants.
    
      Denis and Labarre, for the defendant.
   The judgment of the court was pronounced by

Kino, J.

For the reasons assigned by the judge of the District Court, th® judgment is affirmed, with costs..  