
    D. C. Clark, Administrator, v. Succession of L. Briggs.
    Where the property has been sold under an execution against the purchaser so that he can no longer return it, he cannot demand a rescission of the sale upon the ground of eviction from the greater portion of the property; his only remedy is for a reduction of the price A claim for the diminution of the price cannot give rise to the action of warranty, for in such a case it is the vendor who is evicted of a portion of the price.
    The heirs cannot release a debt due to the succession so long as there are debts due by it and the estate is in a course of administration in the hands of an administrator,
    APPEAL from the District Court of Avoyelles. Farrar, J.
    
      H. Taylor, for appellant, made the following points.
    1. The heirs of Alexander Grimball, being all majors (but one) could accept the sucession either expressly or tacitly. La. Code 878, 983. They could not dispute their acceptance, Ibid. 1003; and bound themselves for the debts of the succession. Ibid. 1006. They must be considered as heirs until they renounce. Ibid. 1007,1008, 1029, 1030. The order of administration. Ibid. 1035, 1039. The moment acceptance is made the law gave them the estate. Ibid. 1048, 1049. 3d. Ann. 502.
    These provisions of our law manifestly show, that when heirs accept a succession absolutely, they take it as they find it; and in such case no administration is necessary. If debts exist, creditor's have the same right to enforce their payment as if the estate were duly administered upon.
    If this position be correct, it applies under all circumstances, whether the succession be under administration or not, if the heirs are present. If absent, the administrator can require security to the extent of the debts. See C. P. 1000, 1003, 974 to 979, et seg. Act 25th March, 1828.
    The next fact for enquiry is, whether any debts existed against the succession; and this is answered by an examination of Clark's final account and the petition of homologation. This account consists entirely of charges in the nature of lawyer’s fees, and costs uselessly incurred by Clark, and greatly prejudicial to the succession. No debts appear to have been paid, nor any collected, but the estate is encumbered with a long list of law charges amounting to some $1800, and apparently for the benefit of no one except the attorney of Clark. The petition for homologation admits the fact, but yet, to cover the laches and grossly negligent administration of Clark, these extravagant charges have been fished up and their payment attempted to be enforced against Brigg's estate some five or six years after he and all the parties having any interest in the succession of Grimball, supposed he was released.
    The truth is, that in 1844, Clark left the Parish of Avoyelles, has never returned to it, and is wholly and entirely insolvent; and this suit wears the appearance of a suit carried on in the name of Clark, but ostensibly for the interest of his attorney. See 3d. Ann. 502. 2d Ibid. 464.
    He, the attorney, can never obtain one cent from Clark, and Briggs’ estate is to be made the scape-goat. Will this court permit it ?
    2d. The estate of Briggs was clearly entitled to their warranty against the heirs of Alexander Grimball. See La. Code, 2482, 3602, 3021, 2195, 2196, 2197, and other provisions as to warranty.
    3d. The third and last point has been touched upon, and the only remark to he made here is, that no debts have been shown to exist against the estate of Grimball, except the law charges and costs figuring in the account of Clark, administrator. And, to conclude, the court is called upon to disturb a security debtor reposing in good faith on a release made and observed in'good faith by the only parties having an interest in the matter. Parties who were heirs, and as such had the right to accept unconditionally and take possession of the succession, against whom creditors have their recourse as fully as against the administrator.
    The minor, J. P. Grimball, having also accepted, and being fully represented in the answer of the warrantor, no reservation could be made as to him; and if the warranty claimed exists, it extends to him also.
    
      
      Flint, for Edelin, in behalf of appellee,
    made the following points. The defendant claims a discharge from the debt sued for, on two grounds: 1st. Because Alex. Grimball had not, and consequently could not give, a valid title to all the land he sold to the defendant McNeely, the principal of the defendant’s intestate. 2d. Because McNeely and Briggs were both released from this judgment by all the heirs (except one) who had exercised acts of ownership, which was equivalent to a simple acceptance of the estate.
    I. The vendee’s surety can in no case demand a rescission of the sale on account of deficiency in the quantity of land; because it is at the option of the vendee himself whether he will claim a rescission of the sale or a diminution of the price. In this case, however, the vendee could not have obtained a rescission of the sale, because he could not return the land to which he did receive a good title. All, then, that could be reasonably demanded by either vendee or security is, that there be a diminution of price in proportion to the deficiency of quantity. This has been done in the judgment.
    II. At the lime of the release, and long prior to it, the estate was in the hands of an administrator regularly appointed. The release then could only operate an abandonment of the interest of those who signed it; that interest was nothing but their respective shares in the surplus after the payment of the debts of the estate. The proposition, that the heirs of an estate which is in a regular course of administration can by illegally intermeddling with it, acquire' the right or power of placing the effects belonging to it beyond the reach of the creditors, is so preposterous and is opposed by objections so numerous and so obvious that its serious refutation is deemed unnecessary. The defendant or his counsel seems to suppose that one cannot subject himself to liabilities without acquiring legal rights and powers. It may be true, that these heirs, by the acts offered in evidence, made themselves liable for the debts of the succession; but it would be strange if by their wrongful acts they could acquire the legal power to defeat the rights of third persons. The only mode by which they could have acquired the authority requisite to make their acts binding upon others was by a formal application to be put in possession of the estate, and giving security for the payment of the debts if required. If the sanction of the law could be obtained for the course pursued in this instance, or for the doctrines advanced by the defendant, the rights of creditors would never be safe, nor could any one with prudence or safety incur the expense and trouble of an administration.
    The debt due by the estate of Briggs is the only fund now belonging to the estate of Grimball, out of which the debts still due by it can be paid. These were nearly all due before the so called release. .
    The defence in this case is so absurd that damages, we think, ought to be allowed for a frivilous appeal.
   The judgment of the court was pronounced by

Rost, J.

The syndic of the creditors of the succession of E. L. Briggs, having filed a final tableau of distribution, the plaintiff, as administrator of the estate of Alexander Grimball, filed the petition in this case as an opposition to said tableau. He asks that the succession he represents be placed thereon as a judgment and mortgaged creditor for the sum of $4000 besides interest. This judgment against Briggs was rendered upon a note subscribed by him and one McNeely in solido, for a tract of land purchased by McNeely from Alexander Grimball.

The defence set up against this opposition is, 1st. that Alexander Grimball had not, and consequently could not give a valid title to a large portion of the land sold to McNeely, and that the want of title was not discovered by McNeely or Briggs until after the judgment had been rendered against them for the price; 2d, that McNeely and Briggs have been released from this judgment by all the heirs of age of Grimball, after a tacit and unconditional acceptance on their part of the succession of their relative. John Paul, one of the heirs, was a minor and did not sign the release.

The defendant in his answer also prayed, that the heirs of Alexander Grim-bull might he called in warranty, and for such a judgment against them as might be rendered in favor of the plaintiff against him. Theheirs of Grimhall answered, denying their liability as warrantors or otherwise.

The district court sustained in part the plaintiff’s claim, and ordered the succession of Alexander Grimhall to be placed on the tableau as a creditor for the sum of §1630 90 besides interest, with mortgage from the 8th of December, 1842, the date of the recording of the judgment. The court further ordered, that if the aggregate of the debts of the estate of Grimhall should be less than the amount of the judgment and interest, and the share of John Paul Grimhall, the minor heir who did not sign the release, on payment of the debts and of that share, the judgment should be deemed fully satisfied. The call in warranty was dismissed at the cost of the defendant. From this judgment the defendant has appealed against both plaintiff and warrantor.

The want of title in Alexander Grimhall to a large portion of the land sold to McNeely, and the fact that the defect in the tide was discovered after judgment had been obtained against the purchasers for the price, are satisfactorily , established; but it is also proved, that the portion to which the vendor had a good title was seized and sold under execution as the property of McNeely, and passed to the purchaser free from incumbrance, Grimhall having retained neither privilege nor mortgage upon it. After the sale, McNeely being no longer able to return the land, neither he nor his surety could have claimed a rescission of the contract. The only remedy was for a diminution of the price. We understand this to be the relief asked by the defendant, and the district court has granted it fully by reducing the original debt of §4000 to $1630 90. A claim for the diminution of the price cannot, of course, give rise to the action of warranty, which the law gives to the purchaser against the vendor in case of eviction. In the action quanti minoris, it is the vendor who is evicted from a portion of the price, and the purchaser receives the full consideration of what he is made to pay.

If the responsibility of the heirs of Grimhall arose from the subsequent release which some of them gave the defendant, it does not give rise to an action of warranty, and should be ascertained in a separate suit.

The judgment against Briggs and McNeely for §4000 was obtained by the present plaintiff in his representative capacity, and the only question left for our consideration is, whether that judgment could be released by the heir's of Alexander Grimhall, without the consent or knowledge of the administrator while the administration continued. It is urged that it could be; because at the date of the release there were no creditors of the succession of Grimhall, and that the debts which now appear against it are expenses of administration subsequently incurred without necessity or advantage to the succession.

The only evidence before us on this part of the case is the account filed by the plaintiff, and homologated by a judgment of court, showing debts due by the succession to the amount of $858 75. So long as this judgment stands unappealed from and unreversed, it is prima facie in evidence of indebtedness. We must consider it proved, therefore, that there are debts due by the succession of Grimhall. To the extent of those debts it is clear thatthe release relied on by the defendant cannot avail him. The judgment having been obtained against Briggs by the present administrator, he knew that it must still be in his possession and under his control, unless it had been transferred to the heirs; and as he made no enquiry, and no such transfer ever took place, he cannot be considered in good faith, and the release thus obtained did not affect the right of tire administrator to recover the amount due, so far as it may be necessary to pay the debts of the succession and the share of the minor heir, who, not being liable to the defendant as warrantor, and never having released him, is clearly entitled to recover.

"We are of opinion, that there is no error in the judgment appealed from; and it is the opinion of the court that it be affirmed.

Judgment affirmed, with costs.  