
    No. 5670
    Lovel Ledoux, Administrator, v. J. E. Breaux, Sheriff, et als.
    After the decease of his wife, the plaintiff, administrator of community property, gave to A. Ledoux his note for a community debt, and mortgaged a tract of land belonging to the estate to secure its payment. The executrix of A. Ledoux obtained judgment, issued execution, and caused a seizure to be made. The plaintiff, as administrator, injoins the sale. The record shows that the estate has not been settled up 5 there are debts outstanding against it besides the one for which the administrator gave Ms note. Under such circumstances, the seizing creditor could expect only to he paid concurrently with other creditors of the estate in the due course of administration. His proceedings are illegal and irregular.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupée. Hewes, J.
    
      John Yoisl and C. E. Schmidt, for plaintiff and appellee. 'Edward Phillips, for defendant and
   Taliafereo, J.

The plaintiff administers the succession of his deceased wife. The property administered is community property. After the decease of the wife the plaintiff gave to A. Ledoux his note for a community debt, and mortgaged a tract of land belonging to the estate to secure its payment. The executrix of A. Ledoux sued upon this obligation and obtained judgment, with recognition of right of mortgage, and thereupon issued execution and caused a seizure to be made. The plaintiff, as administrator, injoins the sale of the property seized on the ground that the debtor in execution has no right in the property seized, except what may remain to him after the settlement of the community affairs j that the property of the succession can not he subjected to the separate debts of the survivor in community.

The defendants answer that their debt is a community debt, and the whole community property is bound for its payment, and that neither the administrator, heirs nor legal representatives have any interest therein until all the community debts are paid. There was judgment in favor of the administrator, perpetuating the injunction, and the defendants have appealed.

The proceeding seems to be irregular. It appears that the succession has not been settled up; that there has been no final account; that there are debts outstanding against it besides the one for which the administrator gave his note and executed the mortgage which the defendants are seeking to enforce. It appears that after executing the note and securing its payment by the mortgage, the administrator took some proceedings toward a partition of the land, and caused it to he subdivided into seven parts or lots, and the defendants released the mortgage upon a portion of the land, restricting it to the lots or portions intended to fall by the partition to the plaintiff. But no partition was ever effected, nothing further having been done in regard to it than the filing of a petition praying for a division of the property. The heirs were minors, and an order for the convocation of a family meeting was rendered, and beyond that no legal steps were taken in the matter.

The defendant in injunction could expect only to be paid concurrently with other creditors of the estate in the due course of administration. The proceedings taken are illegal and irregular, and the decree of the lower court perpetuating the injunction we regard as having been properly rendered.

Judgment affirmed.  