
    
      GRAVIER & AL. vs. LIVINGSTON & AL.
    
    bring an action of partition, P,iiri,hased ⅛⅞ whole estate, from his co-An heir may
    An action of 30
    Appeal from the court of the first district.
    The plaintiffs, as heirs of Bertrand Gravier, claimed three-fourths of the batture, of the fau- ’ * bourg St. Mary, possessed by the defendants, ven-dees of John Gravier, a co-heir of the plaintiffs.
    The petition stated that the plaintiffs, three number, and John Gravier, were the only brothers and sisters of Bertrand Gravier, who died intestate, without leaving any lineal relations, possessed of a number of unsold lots in the faubourg, of a plantation in the rear and the batture in front —that John Gravier, the only one of the co-heirs, in the country, took possession of the whole estate and sold the batture to the defendants—that notwithstanding this, the right of the plaintiffs to their undivided fourths remained unaffected, and they prayed a partition of the batture;
    The defendants pleaded the general issue, de-nyinsr any right of the plaintiffs to any part of the ^ J . 1 , , , Í. „ , batture, averring that, after the death of Bertrand Gravier, the batture was adjudged to John Gra-vier, by the, judgment of a competent Spanish trh bunal, in August 1797, together with the rest of the estate of the deceased, and afterwards the defendants purchased the batture, in good faith, from John Gravier. Lastly, the defendants pleaded prescription.
    There was judgment for the defendants, and the plaintiffs appealed.
    
      Mazureau, for the plaintiffs.
    Most of the facts, a knowledge of which is necessary for the understanding of this case, are so familiar to the menh. bers of this court, that to relate them here again, would be abusing their patience. The greater the importance of this cause, the more it is requisite to avoid useless details, that the principal questions may appear unincumbered with any superfluous matter.
    The coheirs of John Gravier, demand their share of a property which has been declared to belong to the estate of their common ancestor. They originally had an equal right to it : have they lost that right ? Such are the merits of the case. They could ask from John Gravier that share, when he was in possession of the whole ; can they not claim it from the persons who now possess under him ? Such is the question of form. This, of course, must be investigated first.
    It is not m the laws, which we have made our-«elves, for rendering the access to our courts of justice as easy as possible, that we shall find that refinement of tactics, which permits no attack on an adversary, but that which is acknowledged by the rules of art. Instructed by the experience of past ages, and by the example of the evils attending the entangled system of practice, which prevails in some other countries, we have reduced all judicial demands to their simplest expression. “To state the cause of action, and conclude with a prayer for relief, adapted to the circumstances of the case,” is all that is required of a suitor, by the act regulating the practice of our courts. Upon what ground are we asked any thing more ? On what authority do the defendants pretend to admit us to the subtleties of the Roman pleading ? Was it not to obviate the in-conveniencics of that practice, that our legislature has provided so simple a mode of demanding re dress in all cases ?
    
    The defendants endeavour to draw a distinction here between the form and the nature of the action. They say they do not object to the form, but to the kind of action, which we have chosen to institute against them : yet, what is the discrimination between the different kinds of ac~ tjon> kut matter of form ? We have a right to a of the property, now in the possession of the defendants, or we have it not. The object of our demand is to recover that share. To attain that object, we must prove a title superior to that of the defendants : but whether our demand is set off in the form of a petitio lucreditath or of an action communi dividendo, or of a revendication, is, thank God, a matter of no consequence among us. The Roman special pleading has not been transmitted to us. In the first place, it was denied admittance in the Spanish laws and Spanish practice. 1 Treatro de legislación, verbo Acción. And such remains, as might still exist, were finally crushed, since the change of government, by the act regulating the practice of the territorial superior court, according to which nothing more is required of a plaintiff, than to state the cause of his action, and pray for a remedy adapted to the circumstances of his case. Let us see how we Jaave complied with that requisite ?- We say that we are the heirs of Bertrand Gravier; that, as such, we own a part of the batture St. Mary, which has been acknowledged to belong to his estate ; that John Gravier, our co-heir, has sold his share of that batture to the defendants, who now hold it in common with us ; and we pray that it may be divided between us and the defendants. In. short, we state ourselves to be the owners of a r . , part ot the batture, and pray that we may recover that share. Is not this all that the law requires ? Most assuredly.
    But let us go further, and suppose that we are to this day tied down to the forms and niceties of the Roman pleading. Can we not, even then, shew that we are in order ? We think we can : we think it is no very difficult task to demonstrate, not only that the kind of action, which we have instituted, is conformable to the strictest rules of the Roman practice, but that under the circumstances of this case, it was the only proper mode of obtaining a final decision on the merits of this claim.
    If it be necessary to give a name to this action according to the ancient nomenclature, we may call it petitio hcereditatis : for we ask that which we say belongs to us, as heirs of Bertrand Gra-vier. To this the defendants object that this kind of action is not given against those, who possess by particular title, and that the heir has no other action against them than that of reven-dication. It is impossible not to be struck with the excessive nicety of this distinction, between two actions so intipaately connected ; for, what is the petitio hcereditatis, against the possessor of the hereditament, if it be not a revendication, a claim made as owner of the thing ? But it is use-iess to demonstrate the inanity of that distinction: ,, . we have engaged to shew that, even adhering strictly to the rules which derive from this punctilious discrimination, we are in the way which they point out.
    The petititio hsereditatis is not given against the possessor by particular title : why ? Gomez, on the 45th law of Toro, no. I, p. 8, will explain that : “ quia ille qui possidet cum titulo habet et allegat potentius et fortius jus, quam lucres qui agit petitione hsereditatis : nam possessor conven-tus nititur et fundatur ex duplici causa, scilicet, ex titulo habili et legitimo, et insuper ex posses-sione, vel detentione quam habet; hseres vero solum se fundat in suo nudo et simplici titulo hereditario, et possessions quam habuit dejunctus : ergo mérito possessor conventos praeferri debet, et contra eum non habet vires petitio hseredita-tis.” But this evidently applies to a possessor, whose title does not emanate from the same source as that of the heir: for if both claim the thing as having belonged to the succession of the deceased, the distinction between the possessor with and the possessor without title, becomes an absurdity. This is the sentiment of Lopez on law 7, tit. 14, part, 6, where, after having quoted the opinions pro and con the proposition of Baldo, who thinks that the petitio hsereditatis holds good against the possessor with title, when such title has been acquired since the death of , , , , J ..... the deceased, he says, “ tamen potent salvan die-turn Baldi, cum talem titulum acquisierit ab eo, qui poterat convemri petitione híereditatis; et mala fide, seu lite pendente, talis titulus fuit ac-quisitus, ut colligitur ex verbis Bartoli, &c.”
    Rodriguez, at the end of his exposition of paragraph 11, law 13, tit. 3, book 5. of the Roman Digest, recognises that distinction, in still more precise terms ; “ lo que se dice, que el que posee con titulo tiene igual derecho que el que pide como heredero, y que en igual causa es mejor la condición del que esta en posesión, se ha de en-tender quando se verifica igualdad de causa, pero no quando el un titulo es verdadero, v. g. ex testamento o ab intestato y el otro putativo, como lo es, el del que compro de quien no pudo vender
    
    Besides, why should not the general principles, in matters of sale, be applicable to property proceeding from a succession as well as to any other? If I had against your vendor the right of claiming my share of the thing which he has sold you, why, should I not have it against you ? You say I ought to have claimed against you by way of revendication. But what is a demand to have one’s share of a thing, which another pretends to keep wholly to himself, if it be not a revendication of that share ? We cannot assert a title to ⅛6 whole of a filing, of which we confess that ° an other owns a part ; and to claim only a part* what other means could be resorted to, than asking for a partition of the thing ? This action then is a petitio hcsreditatis, so far as it tends to claim that which we say belongs to us as heirs ; but as the whole is not claimed, it partakes of the actioilV communi dividendo, which is, as Pothier says, a sort of revendication. “ Les actions familia er-ciscunda et communi dividendo (Pothier, Contrat de Société, no. 194.) tiennent de l’action réelle, en ce qu’elles tendent á reclamer, á revendiquef en quelque fa^on, et á faire determiner la part qu’a le demandeur dans les choses communes.”
    But here arises a great technical difficulty. The action called petitio hareditatis is distinct from that, by which a division of the common property may be obtained. “ Non possumus consequi per hasreditatis petitionem id, quod fa-milias erciscundae judicio consequimus ut a com-muni one discedamus: cum ad officium judicis nihil amplius pertineat, quam ut partem hasredi-tatis pro indiviso restituí mihi jubeat ” ff 5, 4, 7. Hence, it is said, we ought to have claimed our undivided share of the batture, without asking for the' partition. Why so ? where is the rule, which forbids to demand both by one action ? Is not the second a sequel of the first ? If the first is denied, the second falls with it: bul if it is granted where is the impropriety to decree the second also, without driving the parties to the necessity of bringing another suit? The absurdity of the doctrine, contended for by the defendants, appears in this case in the most glaring manner; for, upon the right of the plaintiffs as heirs, and the portion to which they would be entitled as such, there is no question. Their quality is recognised by the defendants, and the law has fixed their respective shares. Two brothers and two sisters (one of them represented by her only child) are admitted on both sides to be the only heirs : each is therefore entitled to one fourth. Is the decree to go no further than saying so ? This would be refinement indeed; but refinement, bordering upon nonsense.
    According to the Spanish practice, the division could be asked at once by him who pretended to be co-heir or co proprietor. If the defendant denied him that character, the action for a partition was suspended, until the plaintiff’s quality was ascertained ; that preliminary enquiry was considered, as made under the petitio haredi-tatis. If the plaintiff was found to be really an heir, then the juicio divisorio began : “ mas no obstante se debe distinguir : si el sujeto á quien se demanda, 6 pide que haga partición de la he-rencia, ó cosa común, niega al que la pretende, la qualidad de heredero, y por consiguiente que †, nSra derecho á la herencia, se ha de procedes* ⅛ _ 1 ordinariamente ; bien que no se tratara del juicio divisorio, hasta que se le declare heredero, sino del de petición de herencia : y declarado 6 con. 1 . cluido este, se mcohara, o no aquel, según sea la declaración. 1 Febrero de Juicios, 2, 1, n. 22.
    Is not that precisely the situation of our action ? We call ourselves owners in part as coheirs, and pray for a partition : the defendants admit that we are heirs ; but plead other matter in avoidance of our claim. This must be cleared up, of course, first : but if their plea does not avail them, then the partition is to be decreed. Can any thing be plainer than this ?
    But leaving aside all that has been alledged above, we say that it is impossible here to decide the question of form, without enquiring into the merits of the case ; and this is demonstrated as follows : the plaintiffs are the acknowledged coheirs of John Gravier, in the estate of Bertrand : as such, they originally had the three undivided fourths of every thing that composed that estate. They have admitted that John Gravier sold to the defendants, his share in the batture of the suburb St. Mary. If John Gravier had really declared to sell them no more, there is no doubt that the plaintiffs would have a right to institute the action, which they have now brought. What difference ought to make, in the rights of the parties, that act, by which he sold, not only his 1 J ' • share, but ours ? This question is intimately connected with the merits of the case ; if the act was a valid one, we have nothin? to claim of the de- ° fendants ; if it was not, then we have not ceased to be joint owners of the batture, and we have a right to demand our shares in it, and of course the partition of the whole.
    Finally, should this be deemed insufficient to demonstrate to the court that the question of form here is inseparable from the investigation of the merits, there is another reason which, however disagreeable, it is our duty to mention to carry conviction to their minds. The action cab led pstitio hcsreditatis is given, not only against the possessor by particular tide, who holds under the person against whom the action might have been brought, but against all mala fide possessors, whatever be their title. Upon this point all the authors agree. Flow then are we to know whether the defendants are bona fide possessors, unless we go into the merits of the case ? They alledge a sale; but is that sale an honest one ? They say they have bought all the batture ; but did they believe that the individual, of whorp they bought, had a right to sell it all ? They call themselves purchasers in good faith ; but is it not ne, cessary to ascertain that fact, before it can be decided, whether the action brought again§t them js or ⅛ not legal ? Upon this doctrine we refer to ff 5, 3, 13, and particularly to Rodriguez’s exposition of the 4th. paragraph of that law. “ Se ha dicho que regularmente no se da la pe-tición de la herencia contra el que posee con ti. tulo particular ; pero si posee en los términos que se expresa en este párrafo, se dara contra el la acción útil ; y con mas razón, si compró la heren-cia al que sabia que no era señor de ella, y es po-seedor de mala fé ; porque en estos casos es te-nido por poseedor, como expresa la ley de par-tida, y se dirá después.”
    To resume, we say, first, that our action is well instituted, because those, of whom we claim, bought of the person against whom we could bring it. 2°. That the question concerning the legality of this action, is connected with the merits of the case in two ways ; first, because it must be ascertained whether the vendor had a right to sell; and secondly, because the alledged good faith of the defendants must be proved.
    And now, after having shewn that we are strictly in order, even according to the subtle distinctions of the Roman practice, we must return to our laws, and repeat that they do not require that technical precision, which was once considered necessary in the legal warfare ; that with us where the citizen may appear and defend his rights in person, it is sufficient to state the cause of action, and pray for relief according to the circumstances of the case ; and that, provided the judge is made to understand the subject matter and the prayer of the plaintiff, he is bound to decide, without regard to defects of form or imperfections of pleading. Here we state ourselves tobe heirs of Bertrand Gravier, and, as such, owners in part of the batture St. Mary ; we state that John Gra-vier, our co-heir, has sold his rights to others, and we pray that this property be divided between us and those purchasers. They answer, that the whole of the property is theirs, and that we have no right to any part of it. Are we not fully at issue, on the respective rights of the parties ? Cannot the court decide on them, and so decide, as to render it unnecessary, hereafter, to bring any other suit ? Most certainly. We will now approach the merits of the case.
    "We have admitted that the defendants bought from John Gravier all that he had a right to sell them, that is to say, his share in the batture of the suburb St. Mary.
    The defendants have answered :
    1. That John Gravier was proprietor of the whole by virtue of an adjudication to him made of all the estate of Bertrand, which adjudication has now against the plaintiffs the force of res judicata.
    
    £. That they have bought from him all the bat-ture, bona fidey and under a belief that it belong, ed to him by virtue of that adjudication.
    3. That the rights of the plaintiffs, if they had any, are now prescribed.
    The parties are at issue on those allegations, according to the practice of the district court, which permits not any written replication.
    To the first ground of defence we reply ;
    1. That the adjudication relied on, is null, as against us ;
    
      2. That were it valid, the batture was not included in it.
    Xhe adjudication is null for two principal rea» sons •.
    1. Because the plaintiffs were not made parties tq it ;
    2- Because it was made in violation of the laws.
    I. It is unnecessary to observe that a want of citation of the parties is of all the defects the greatest, and that no lapse of time, however long, can cure it. A suit without suitors, a partition without parties, are monstruosities, which have no name in jurisprudence. To reason upon this, would be losing our own time, and treating the court disrespectfully.
    But the defendants maintain that the plaintiffs were legally represented in the adjudication, on which they rely. That is the fact which must be enquired into.
    At the time of Bertrand Gravier’s death, there was here but one of his heirs. That heir caused an inventory of the estate to be made ; andat/c-fensor to the absent heirs was appointed. Although it might be reasonably contended that the heirs themselves ought to have been called personally to the inventory, we will not insist upon that right, because we may do without it, and it is our wish to leave out every thing, which is not strictly necessary to the elucidation of our claim. The in* ventory and appraisement were measures conservatory and usefull to all ; we have no objection to admit that a defensor ex officio could represent the absent heirs thus far. But, was it not indispensable to call the heirs to the partition ? Could any measures be taken in their absence, tending to the alienation of their property ? There are, no doubt, circumstances, where the alienation of the property of an absent person is proceeded to against a defensor ex officio ; but that is a violation of the natural law, which must be confined to the cases of absolute necessity. Was there in this instance any such absolute necessary ? No. Could the heirs be called personally ? Yes. Let us see what was the practice of the Spanish courts in such cases.
    Ayora tells us, that the absent heirs must be cited at the place of their domicil and bv mean;: of advertisements posted up (edictos) before any curator or defensor can be appointed to them ; but he adds that this formality was but little attended to, so that judges used to appoint a defen-sor to the absent, so soon as the absence was ascertained. Ay or a, 5, n. 16 Sc 7. Such was, perhaps, the looseness of the practice in the time of Ayora; but in more modern days, that abuse had been corrected ; for Febrero, Juicios, 1, 2, n. 7, lays it down as a positive rule, that the absent must be called, when the place of their residence is known. He expresses himself as follows: " if any one or more of the heirs be absent, those \vho are present may demand the partition, and it may be made at their request ; but the judge must inform the absent heir of their pretension, and grant him the necessary delay to represent thereupon what he may think fit, because his interest and prejudice is here treated of. The judge must also cause them to name accountants (con-tadores) and if it appears that the absent has not been called, he ought not to proceed in the case until he is cited, because it is his duty to see that the proceedings be conducted legally in every thing substantial. He should therefore provide the absent with a defensor, jointly with whom the partition and its incidents may be gone through ; but it must previously be ascertained, not onlv that the person is' absent, but that there is no ex- . r , . . . . pectation or his returning shortly, and that on account of the distance, it is not easy for him to eóme, nor to send his power to some one to represent him ; for, if his fixed residence is known and he can be cited by dispatches (requisitorias,) they must be sent to that effect
    
    Let us now apply this authority to the facts. Was the residence of John Gravier’s co-heirs known ? He had himself declared under oath, that he had a brother residing at Bordeaux, and a sister residing at Bergerac. Had it been ascertained by a previous information that it was difficult for them to come, or to send their power of attorney ? The decree of the Baron de Caion-delet ordering them to be called, is an answer to that.
    It is said, that they resided in a foreign country, out of the jurisdiction of Spain, and that the Spanish government had no authority to send any citation there. But a citation is not an order ; when a party, even within the jurisdiction, is cited to appear, he is not obliged to obey. If he does not obey, proceedings go on, and he is condemned by default; that is all the consequence. So, the requisitoria which is sent abroad is no-I thing more than an invitation to the party to com$ 1 and assert his rights. For that invitation, it is 1 not that the should be ⅛0 Jurisdiction by which it is sent. The in* _ . vitation is made with permission or the government( under which the absent lives, and is for-vvarded through its interposition. The practice of the Spanish court, was therefore, to send re-quisitorias abroad, as well as within the kingdom. Should there remain any doubt on that subject, it will be removed by looking at the formules of addresses, which Frebrero, Juicios, 3, 1. p. 18, note 2, recommends, according as the requisito-rias were to be sent to Italy, to France, to England, fcfc.
    To return, the residence of John Gravier’s coheirs was known ; the rules of practice of the Spanish courts required them to be called: a solemn decree rendered in conformity to those rules, ordered them to be called: were they called? No. That decree was trampled upon eight days after, by the successor of the baron de Ca-rondelet! But after trampling under foot that decree, and the rules on which it was founded, did they, at least, observe the sham-formality of appointing some person to defend the property of the absent heirs ? No. The same individual, who had been formerly named to represent them, was applied to with a notice of the demand by which John Gravier requested the whole estate to be adjudged to him at the appraised value.— But that defensor was no longer their representative. His functions not onlv were at an end, i , . ' . ’ because he had done what he was commissioned to do, but they were declared to be at an end by the decree ordering the heirs to be called in per. son. To make them now perform a part in the partition (if we honor the adjudication with that name) it was necessary to appoint over them another defensor, or rather curador, with further powers, that is to say, with a special authorisation to consent to the partition, or in other words, to the alienation of the property of the absent. Such is the rule which both Ayora and Frebrero lay down in the articles above quoted. Even these appearances have been neglected. The defensor, formerly named, received the notification of John Gravier’s demand : he answered that he acquiesced in what the court would determine, persuaded that it would do justice; and the deed was consummated ! The estate was adjudged in a lump, for little or nothing, to John Gravier ! And they dare tell us, that we are bound by that adjudication ! That we are, forever bereaved of our property ! God forbid ! Not for the interest of the plaintiff’s, but for the good order of society, that such doctrine sffpuld be sanctioned in any time.
    To resume, we say that the practice of the Spanish courts required that the co-heirs of John Gravier, should be called to the partition of the estate of th ir brother, and that they were not ... . . called ; that admitting that such partition could be proceeded to without them, they ought to have been represented therein, by a defensor or curator ad hoc ; that the defensor formerly named, and whose functions had expired, could not represent them in the partition or adjudication, without a new authorisation and another oath ; and that nothing of this has been done. We conclude, that the co-heirs of John Gravier, having been neither cited nor represented, are not, in any manner, nor according to any law, bound by the adjudication, which is here opposed to their plaim by the defendants.
    The above grounds of defence are common to all the plaintiffs. The minor, Jane Bordier, has to alledge a defect of representation which is particular to herself.
    According to the constant practice of the Spanish courts, no proceeding can be had against a minor unless a curator ad litem be appointed over him. This is rigorously required in all cases, but a fortiori in cases of partition, where the alienation of his property is treated of. Febrero, Juicios.. 3, 1, n. 13. ic If he, who is to be cited, is a minor, he must be provided with a curator adlken?, whether he is, or not, in the place. Sec,’*
    
      It has been vaguely asserted that the defensor of the absent heirs ought to be considered as representing them all, whether minor, or of age ; we say no ; because the minor must be represented specially.
    But John Gravier, it is said, knew nothing of this minor. That is hard to believe : for John Gravier knew that he left in France two sisters and a brother ; he declared in the mortuoria, that he had one sister and one brother ; he was, therefore, informed of the death of one of his sisters : but by the same channel, he must have learned that she had left a daughter. Besides, what of that? Whether he knew that this minor lived, and did not cause her to be represented, or actually was ignorant of her existence, the fact is, that she was not represented, and the consequence is, that the partition is null as to her. Ayora, 1, 5, n. 18. Febrero de Juic. I, 2, n. 8.
    It has been asserted, that the title of John Gra-vier, to the whole of the estate, left by Bertrand, has been recognised and assented to on the part of this minor, in a certain suit instituted in her behalf by her tutor ; but, the proceedings carried on by that tutor, waving any other objections to their legality, are not binding upon his pupil ; because by the laws under which he was invested with the tutorship, he could neither accept por refuse the inheritance accrued to his minor. nor cnter ^nto an7 compromise respecting her rights, without the authorisation of the meeting jjer family, which protective and salutary provision, has been totally disregarded here. Code, Napoleon, art. 461 & 467.
    We shall now take up the .other ground of nullity.
    II. In Spain, as any where else, the laws know but of two modes of making the partition of an estate, by lots or by auction. When the partition cannot take place otherwise than by sale at auction, the law authorises the judge to strike off to one of the heirs, not, indeed, the whole estate, but the thing which is not susceptible of division, or which, by being divided, would lose much of its value, such, says the law, as a house or a vineyard. Part, 6, 15, 10. Rut in no case does it permit to adjudge to one heir all the property of which an estate is composed. An inheritance consisting of distinct and separate immoveables, of slaves and other property, could not be adjudged in a lump by virtue of that law, nor of any law in the world.
    Even in the case where, on account of the loss which the division of a thing would occasion, it is made lawful to adjudge it to one heir, the judge must, says Lopes on that law, strike it off to the one who bids highest, qui vicerit in licita-* *• 1 tione: Such is likewise the opinion of the authors whom he cites. And how could there be a different opinion ? Who is the lover of justice, whose reason does not revolt at the idea of an arbitrary adjudication in favor of one of the co-proprietors, without regard for the offers which the others might make of a higher price ?
    
    But no such thing here was in question as the necessity of a sale or licitation ; there was no occasion to deliberate whether the estate could be conveniently divided ; no one did, and no one could suggest the inconveniences of a division. And how could it have been pretended ? The goods of the estate were ready divided. There were 56 slaves : that was 14 for each: there was a number of lots in the suburb : four parts could be easily made of them : the moveable property, the money all could be readily distributed ; the plantation alone was liable to be divided, or struck off at auction in a body, according to the direction of the judge. But the adjudication in a lump of the slaves, or the lots, of the plantation, and in one word of every thing which the estate consisted of, and that to the only heir present, and that, not at auction, but privately, was an arbitrary and illegal act, an open violation of all laws, and as such, null and void ipso jure, as declared by law, Part, 3, 26, 3. As to the name, which it deserves in a moral point of view, we will forbear to pronounce it, out of respect for this court.
    Finally, if the heirs of age were legally made parties to the adjudication, if the minor was duly represented without a curator ad litem, if the adjudication of all the estate in a lump, was a legal act, it remains for us to shew that the tract of land, of which we claim our share, was not included in the inventory and appraisement of Bertrand Gravier’s estate, and therefore, was no part of the property which wras gifted away to John Gravier.
    The batture was not included in the adjudication. We are now entering a field, in which this case assumes an entirely new aspect, and where the question to be investigated is altogether unconnected with the former enquiries ; for should the court be of opinion that the batture was not comprehended in the appraisement, and made consequently no part of the property adjudged to John Gravier at the price oj appraisement, then it will become unnecessary to pronounce upon the legality of the adjudication and useless of course to take any notice of the objections raised against the form of this action ; for, if the adjudication (which is not attacked here, but simply repelled) remains undisturbed, the respective rights of the heirs are to be considered as set-tied, the partition as made, and the estate as li- * ... quidated so far ; and the action arising on the discovery of some property, which was not divided, will no longer savour of the petitio hceredita-tis, but will be a mere action communi dividendo, as explained by Febrero de Jucios, 2, 9, n. 12. An action generally given to all persons, who own any thing in common, no matter how they came by it. “ He who purchases a share of a right or other thing, belonging in common to several persons, enters into their common ties and engagements without partnership or covenant : and it is the same thing, if several purchasers, purchase every one of them, singly and separately, different shares undivided of one and the same thing.” Domat, 2, 5, 1, n. 4.
    We say, that the batture is not included in the adjudication; it ought to be useless to demonstrate this fact by arguments. There is not in the whole inventory and appraisement one word about the batture. And how could there be ? The government, whose officers presided there at, considered the batture as public property. That it was not so of right, has been decided ; but that does not affect the present question. The public possessed it: the government openly maintained that possession ; the batture was, in factf out of the estate of Bertrand Gravier, No won-¿[er then, that it should not figure in the invento-. . ° ry and appraisement.
    But the ingenious counsel of the defendants aré not to be embarrassed by that omission. Truly, the batture is not expressly mentioned in the inventory, that cannot be denied : but it is tacitly and silently occupying- a place therein : it is implicitly included in the article of the plantation ! Are the defendants in earnest ? So they pretend to be. Therefore, we must go into the investigation of that question with as much gravity as we can command.
    At the time of Bertrand Gravier’s death, this plantation was no longer such as he had once owned it. The fore-part of it had been laid out into a suburb, which occupied the whole front upon a depth of twelve arpents. Bertrand Gra-vier’s plantation was confined behind that. When the inventory was made, the extent of the plantation, being not known, it was mentioned in these words : “ item, are placed in this inventory the lands of the plantation, the extent of which, can. not be immediately ascertained, because many lots have been sold; but Mr. Nicolas Gravier, has informed that its limits run as far as the forks of the bayou, according to the titles of the same.” This declaration, that no description can be made of the lands of the plantation, refers necessarily to the description, which shall be hereafter giv. en; notwithstanding the opinion of the honorable judge of the district court (be it spoken with due respect and seriousness) who thought that the description referred to the non-description, or • , , , . • f ’ in other words, that the appraisement m which the plantation and the lots are described separately, referred to the inventory, where it is said that the land cannot yet be described. The description then, as it was made, at the time of appraising the plantation, is as follows •• “ item, about thirteen arpents of land, of which the plantation consists, including therein the spot of the garden, from which land the most useful part has been cut off on the front; so that there remains of it but the low grounds, which grow narrower towards the depth, andaré inclosed with bad fences ; a part of the best land on the side having been sold to Messrs. Navarro and Percy, and the negro Sambo : which thirteen arpents with twelve negro cabbins, have been estimated by the appraisers, at £ 190 the front arpent, the whole amounting to 8 2740.”
    Such is the article in which the batture must be searched, as an appendage of the plantation l a plantation, of which there remained only the low lands, inclosed with bad fences, which was confined behind a suburb occupying the whole front on a depth of twelve arpents ; which was reduced to thirteen arpents front instead of sixteen, which it originally had, because the lateral ’ , lines approach each other as they run towards the depth, and are only distant thirteen arpents from one another, at the place where the suburb terminates : that plantation, it is said, had for ait appendage, beyond that suburb, a spot of ground which extended along the river on the other side of the public road ! But see into what a train of absurdities this proposition leads. The batture was an appendage of the plantation hidden be» hind the suburb, and the lots unsold in the suburb were not J It was found necessary to inventory and appraise those lots separately, and there was no necessity to inventory and appraise the bat, ture ! That land thirteen arpents broad, had a dependency of sixteen arpents front ! That low and marshy soil inclosed with bad fences, had for an appendage, far from its inclosures, a line of high land in a fine situation ! That tract worth only S 2740, had a dependency worth at least $ 10,000 ! All this the court must allow, before they can say that the batture was adjudged to John Gravier ; and they must further allow, in the face of the testimony, that the same government, which maintained the public in possession of the batture, did inclose in the inventory of Bertrand Gravier’s estate that very ground which they considered as public property.
    But let us admit, for á moment, that the bat-ture was a dependency of the plantation situated behind the suburb ; was it such a dependency as could pass of course, with the principal, tacitly and without any explanation ? not so. In matter of sale (and this is placing the subject in the most favorable light for the defendants) such dependencies are those, which, by law or custom, are considered as united to and inseparable from the principal thing. Thus, where a house or a piece of land has, contiguous to it, another house or another piece of land, if both went under one name without distinction, and were inhabited, used and enjoyed, promiscuously and accessorily by the vendor, the sale includes both the principal and the accessory ; otherwise not. (Febrero de escrit, chap. 7, sect. 1, no. 35.) In such a case it is thought by some that even the existence of a road between the principal thing and its accessory will not prevent the accessory from passing with the principal; Si codem nomine nuncupetur domus, vel fundus principalis et ac-cessorius, et in ejus actibus fruendo vel habitan-do promiscué et accessorié venditor utroque ute-batur, venditio utrumque comprehendit ; secus vero alias. An vendita domus intelligatur ven-ditus hortus, vel apotheca ? Tiraquello ait, destination hortum adusum domus cum ea transire, etjamsi non sit intra septa ipsius domus, et quam-yis inter hortum and domum esset via publica.’’ 
      Additions to 2 Gomez, c. 2, n. 14. If the house and the garden, separated from it by a road, are parts of the same whole in such a manner that the vendor enjoyed them promiscuously and jointly, the sale of the house will embrace the garden. This is the utmost stretch of the principle, for which the defendants contend. Let us see how it will bear the application here. In the first place, what similitude can there be, between the situation of a house and its garden, separated, only by a public road, and that of two tracts of land distant twelve arpents from one another, and separated by the property of other persons f Next, did Bertrand Gravier enjoy promiscuously the batture and the plantation thus respectively situated ? That was physically impossible. Finally, did he enjoy the batture at all ? all the testimony says, that it was then in the possession of others. Thus, supposing the batture to be a dependency of the plantation situated behind the suburb, it was not such a dependency as could pass tacitly even in a sale of that tract of land. Much less then, can such tacit transfer have taken place in a partition, where the strictest equality between the partakers, is the paramount rule.
    But again, the batture, which had been once an accessory of Bertrand Gravier’s plantation, when the body of that plantation extended to the river, was no longer so, since he had established a suburb on the front of his land. An alluvion - . . is accessory to the riparian soil. But the ripa-rían soil had ceased to be a part of the plantation ; it had been severed from it to form the suburb. One of two things had then taken place ; the alluvion had become accessory to the front lots, or it had remained in the estate of Bertrand Gravier, as a tract of land acquired by him while he was a riparian owner, but entirely unconnected with the low lands which are described as his then plantation. Hence, independently of the manner in which the Spanish government considered the batture, those low lands must have been appraised, as they were, by themselves. Hence, the lots remaining unsold in the suburb, must have been appraised, as they were, distinctly and separately from the plantation. Hence the then plantation, reduced to thirteen arpents front, and consisting of low and marshy grounds, was to be appraised at the rate of 8 190 per arpent, amounting only to $ 2740; while the batture, according to the most moderate estimation, was worth at least 8 6000, and upon an average of the testimony S 10,000. But to repeat it again, the bat-ture was not included in the description and ap-praisement of Bertrand Gravier’s estate, because the government, by whose order those proced-ings took place, did not consider the batture as a part of that estate, but as public property, and because the batture,, though of right belonging to ' , „ . , that estate, was in fact out ot it at that time. Perhaps this is insisting too much upon a selfevi-deilt fact.
    But if the batture makes no part of the property adjudged to John Gravier, then the defendants intrench themselves within their own purchase, and from thence bid defiance to the rightful owners of the three-fourths of that property. On what extraordinary exception to the usual rules is that confidence founded ? According to what principles is an heir to lose his property in any other manner than all other owners ? The counsel for the defendants think they have found such particular rules of expropriation in the Roman Digest, and that they are supported in their appeal to it by the Spanish jurists.
    The law relied on is the 25, 88, 17, dé hared, petit. it is expressed in these words ; “ item si rem distraxit bonae fidei possessor, nec pretio factus sit locupletior ; an singulas res, si nondum usucaptse sint, vindicare petitor ab emptore pos-sit ? Et si vindicet, an exceptione non repella-tur, quod prcejudicium hareditati non fiat inter actorem et eum qui venum dedit; quia non vide-tur venire in petitionem hasreditatis pretium ea-rum, quamquam victi emptores reversuri sunt ad eum qui distraxit ? Et puto posse res vindi-cari, nisi emptores regressum adbonss fidei pos- . / ° 1 sessorem habent.
    Before we come to shew, that this very intricate disposition of the Roman Digest is incompatible with the Spanish laws, and therefore of no force in Spain, we have no objection to demonstrate that it is not in any manner applicable to the present case.
    This opinion of Ulpian is based on a senatus-consultum (see law 20, p. 6, of the same title} enacted at the request of the emperor Adrianus, for the relief of some persons, who believing themselves to be heirs of a certian individual, had sold the estate, unaware that part of it had accrued to the public chest, and were afterwards called, upon for the purchase money and the interest thereof. It was, thereby, provided that inasmuch as they considered themselves as heirs, and had disposed, as such, of the inheritance, before an}' demand had been made upon them on the part of the treasury, they should not pay any interest of the purchase money which they had received : and that this should be henceforward the rule in similar cases.
    
    Ulpian then, reasoning upon that senatus-con-sultum, observes that it was enacted for the protection of the bona fide possessors of inheritances, who happen to dispose of them as such, that therefore its operation ought not to be confined to cases 0£ pubiic claim, but ought to extend to private ones. “ In pnvatorum quoque petitiombus senatus consultum locum habere, nemo est qui * x ambigit, licet in publica causa factum sit. ” (same law p. 9.) That is to say : because it has pleased the government to release their own claim, in favor of persons who disposed of property belonging to the public, believing it to be their own ; therefore private individuals, whose property is disposed of in that manner, shall have to do the same. With due respect for the great name of Ulpian, this is a strange consequence : but let us proceed.
    In law 25, p. 17, above translated, when he comes to examine what effect this doctrine is to have with respect to the purchaser of property thus circumstanced, he is of opinion that where the vendor has not augmented his fortune by the sale, the true heir cannot demand the thing from the buyer, if the vendor has bound himself to warrant him against eviction. Ayora and Fe-brero adopt this principle without comment (see Ayora part 1, chap. 5, nos. 19 to 24, Febrero de juic. lib. 1, chap. 2, nos. 9 & 10.) But Rodri'guez, in his exposition of that law, explains the reason of it to be, that if the vendor has benefited nothing by the sale, as, for example, if he has, without his fault, lost part or the whole of the ' purchase money, or of the things into which he inverted it, he should have to indemnify the buyer with his own funds, should the buyer be evicted; which would be contravening indirectly the senatus-consultum, which provides that the possessor of an inheritance, who, considering himself the heir, alienates the estate, shall not suffer for it.
    Thus are we, by this concatenation, brought to a result directly contrary to the general maxim that, “ id quod nostrum est, sine facto nostro ad alium transferri non potest.” A thing at which Ayora starts saying: “Quod est mirabile!”. And which Febrero calls “violent and shocking.”
    But admitting this refined aberration from the eternal principles of justice to be law here, how is it to be applied to this case ? John Gravier, possessed as purchaser under the adjudication, or as heir. If he possessed as purchaser, the sena-tus-consultum is not applicable to him. He is in the same predicament as all other purchasers. Those who bought from him, can make no other use of his good faith (as they call it) than for the purpose of prescribing, if they have successively possessed the time required by law to prescribe.
    If John Gravier possessed as heir, then the defendants, to avail themselves of this law, and of the opinion of the Spanish authors upon it, must bring him within the conditions therein imposed. What are they ? First, John Gravier must have keen a bona fide possessor, as sole heir : he must have believed that his co-heirs were dead. (Ayo-ra an¿ Febrero, loe. cit.) How stands the fact with respect to that belief? Let his oath, page 6, of the mortuoria, answer that. Let every page of that document, down to his engagement to pay his co-heirs their shares, say whether he believed the whole inheritancé to be his. 2dly. He must have spent or lost the price of sale. Again, how stands this fact ? Why, he has not a shillling of it yet : the whole price is locked up in Mr. Livingston’s hands; witness, that gentleman’s own declaration in the case brought by Maurian in the name of Jane Bordier’s tutor.
    But let us see if, in Spain, we were not governed by plainer rules than the law invoked by the defendants. Let us see whether there are in Spain two measures, one to distribute justice to every owner, and one to parcel it out to owners by inheritance.
    The Roman body of laws, entitled as it is to our veneration, is not law in Spain. It is consulted with respect as the fountain from which the soundest principles of natural law have flowed into the Spanish code : it is resorted to as containing a vast deal of information on the matters contained in that code. But wherever it treats of dispositions which are of the domain of positive law, and which do not coincide with the Spanish law, there it is of no authority whatsoever. .
    With deference then for the authors, who seem to think that the above passage of the Digest is of some authority in Spain (for our respect for the learned must never be a blind and servile acquiescence in any thing they please to say) we do aver, not only that the laws of Spain have established no difference between the goods of a succession and any other as to the manner of acquiring them, but that there is an express law, by which the purchase of the goods of an inheritance from a person supposed to be the heir, and who is not, is assimilated to all other purchases of the same nature. That law is the 7th of tit. 14, part. 6. It speaks in these words : “ one can possess the inheritance of another in three ways : the first is, when the possessor thinks that he has a right to it for some reason, and has it not : and this would happen, if he had bought the estate from a person who had no right to it, believing that he had; or if one was instituted heir by a will which was afterwards revoked without his knowledge ; and in such case we say, that if he, who pretends to be the owner of such property, does not claim it within ten years, if he is in the land, or twenty if he is abroad, he shall afterwards lose his right, Etc.”
    Supposing then, JohnGravier to be a bona fide 
      vendor and the defendants to be bona fide pur» • ° 1. chasers of the property which we claim, here is a law of our own to decide between us.
    But again, let us repeat that neither John Gra-vier nor the defendants are in a situation to invoke the Roman law above examined. Good faith is wanting here not merely on one side, but on both. John Gravier did not think himself to be the only heir : neither did the defendants believe any such thing. John Gravier did not lose any part of the purchase money, for he has not, received one cent. So the defendants are welcome to torture the unfortunate senatus-consul-tum ; there is nothing to be squeezed out of it.
    But should the court be of opinion that own. ers by inheritance are entitled to the same protection as other owners, and that this speedy mode of stripping them will not do, the defendants have still abundance of means of accomplish, ing their object. They can plead prescription in a variety of shapes, and it would be worse than ill luck, if no one of them should succeed.
    The first kind of prescription which the defendants invoke is that, by which our action of partition is said to be barred: an easy and commodious way of getting rid of this demand, if under this plea, the defendants should be dispensed, (as they would have it) from the disagreeable obli- ' ... ° gation of proving their possession. .
    The general principle is, that actions of this kind are barred after a lapse of thirty years, during which time the estate, or the different parts of the estate, must have been possessed separately by the heir or heirs against whom the partition is demanded. “ Si néanmoins cette jouis-sance et possession séparée durait depuis trente ans ou plus, et que cela se püt prouver, soit par témoins, soit par écrit, comrae par des baux qu’ils auraient faits chacun séparément des héri-tages qu’ils possédent séparément; en ce cas ces co-héritiers pourraient se maintenir dans cette possession contre l’action de partage qui serait intentée contre eux, par la prescription de trente ans.” Pothier, traite de successions, vol. 1, chap. 4, art. 1, sect le. Febrero lays down the same principles in his treatise de juicios, book 1, chap. 2, sect. 1, no- 14. But no. 15 h© says: “ pero para que la partición se entienda hecha entre mayores, no se requiere el transcurso de treinta anos, basta el de diez ; por lo que si los hermanos después de la muerte de su padre habitan separa-dos por diez anos entre presentes, y veinte entre ausentes, se presume hecha la division de la he-rencia paternal, y lo propio millita quando los co-herederos, o socios, callaron por el referido respectivo tiempo; y principalmente, si pose-yeron la cosas de la herencia o sociedad, pues la possession, y su taciturnidad inducen la re-ferida. presunción, la qúal transfiere en el que pide la division, la obligación, y gravamen de probar que no se hizo, sin embargo de que por ser cosa de hecho, no se presume, y debe pro-barla quien alega estar hecha.” Si los co-he-rederos callaron por el referido tiempo, is relied on as the only circumstance necessary to bar the action. We say no : their silence arid your possession are inseparable ingredients to create the presumption that a partition tools place : and if nothing is shown to the contrary, the action will be considered as prescribed. But their silence alone proves not that you have been in possession the length of time required by law ; and their silence, though coupled with your possession, will not amount to more than a presumption that a partition was made, and will at best throw on us the obligation of proving that it was not, el gravamen de probar que no se hizo.
    
    Now, do you prove that you have been in possession twenty years, and then we shall rebut the presumption arising therefrom, by showing that the partition, -which you exhibit yourselves, is a nullity ; or that if valid, it does not include the property which we claim.
    This particular kind of prescription, then. fair from being advantageous td the defendants ° „ ° tvnl finally be round to require of them a possession of thirty years. So they had better rely On the general principles.
    According to the general principles in matters of prescription, the defendants will do enough, if they prove twenty years possession with a just title and good faith.
    The title of the present defendants to two-, thirds of the batture St. Mary is a sale from John Gravier executed in March 1804: it is what the law calls a just title ; and so far there is no difficulty. But allowing them to have been in peaceable possession ever since, with good faith, that would make but little more than fourteen years : the balance is to be made up with the possession of their vendor ; but their Vendor had none, or if any, a very short one.
    Thus allowing to the defendants a just title, good faith and uninterrupted possession, they have not prescribed. We could rest here, and dispense with any further discussion ; but in duty to our clients, we must not leave unexplored any of the recesses in which the defendants may take refuge. We have supposed good faith and uninterrupted possession. Good faith ! ! . . . Was it in good faith that John Gravier sollicited that shameful decree, under which he to his co-heirs of their shares jn the common property ? Was it in good faith that he sold to the defendants that which he knew did not belong to him ? Was it jn good faith that the defendants bought from one heir that which they saw to be the property of several ? Was it in good faith that John Gravier sold, and that the defendants purchased a tract of land for the possession of which they knew they should have to contend ? Was it in good faith that John Gravier appeared in a suit against the city-after he had sold his rights to others ? Was it in good faith that the purchasers kept concealed during that suit, and that possession was given to John Gravier, though he was no longer the owner ? Was it in good faith that an attempt was made to obtain, from the court, a judgment for John Gravier alone, as purchaser of the batture under the adjudication ? And when the court refused to pronounce upon that, in the absence of the co-heirs, was it in good faith, and as sole owners, that John Gravier and the defendants took possession ?
    
    Bút suppose that all these mysterious bargains were carried on in good faith, on the part of John Gravier as sole owner of the batture, and on the part of the defendants as convinced that he was, where is the possession necessary to prescribe ? To begin at the time when Bertrand Gravier died, who had the possession then ? Did J. Gra-vier so much as pretend that he had a right to 1 & possess, until after he had sold or was about to sell to Messrs. De La Bigarre and Livingston ? No ; his first attempt to take possession takes date from that time. And since then, what possession had the defendants ? Take away the civil and the natural interruptions by which they have been assailed, and what will remain ?
    
    But we must beg the pardon of the court; any reflection on the want of good faith and of possession might have been spared; for allowing all that to the defendants, and heaping together all the days that have passed since John Gravier made his first attempt to possess, yet they do not amount to the time required to prescribe.
    But the defendants are not yet subdued: they must try whether they cannot make this a prescription of ten years, as between present.
    John Gravier lived at New-Orleans, and his co-heirs in France, that is true ; they never sent any agent, nor any power of attorney, nor any one line of authorisation to any person here, until the year 1817, that is all very true. But then, as early as 1807, soon after judgment was rendered for J. Gravier against the city, Mr. Der-bigny wrote a consultation, advising the heirs that a tract of land of considerable value, not comprehended until then in the inventoried property left by B. Gravier, had been decreed to be part of ⅛ estate, and that, should it finally remain so, . . ’ the three fourths of it were theirs. That consultation was delivered to Mr Pitot to be forwarded to the heirs ; Mr. Pitot wrote to his friend, Mr. Otard, in Bordeaux, recommending to forward it; Mr. Otard probably forwarded it; Mr. Pitot continued to write to Mr. Otard, keeping him advised how things went on ; Mr. Otard probably transmitted those informations to the heirs. Now, could not this be so construed as to shew that the heir$ w.re represented here ? True, they had no agents ; but then they had some kind of riego-iiorum gestores, gentlemen, who volunteered their services with the odious intention to prevent them from being plundered. Could not these obnoxious gentlemen be considered as the representatives of the co-heirs of John Gravier, ever since their criminal communication? Perhaps they might; the defendants have already done wonders ; could they but perform this one more, and their prize is safe. But no : it is not; for they cannot even complete ten years of peaceable possession, nay, of any kind of possession.
    We have now done with the discussion of what we think to be the only points of any consequence in this case. But before we close, one more observation is necessary. The defendants after having alledged a title to the whole of the bat ture, under a sale from John Gravier, have thought fit to produce a sale only of two thirds, so that J. Gravier appears not to have divested himself of the other third. If this be a finesse, to shew that all the proprietors of the batture are 1 _ _ not parties to this suit, and that no partition can be decreed, we are willing to meet it with our common sense. Whether John Gravier has sold only his share, or more than his share, or the whole, is a matter which we deem unimportant. He had a right to sell only his fourth, and so far we admit his sale to be good, and to have placed the defendants in his stead. In the two thirds, then, or in the whole, that share is included ; let the court allow the defendants that fourth, and the other three fourths to us, and decree the partition. If John Gravier comes in afterwards, and claims his pretended third, we will debate the matter with him.
    
      Livingston for the defendants.
    
    The plaintiffs alledge that they are the heirs of Bertrand Gra-vier for three fourths of his estate ; that John Gravier their co-heir for the remaining fourth sold his undivided portion in a part of the estate, called the batture, to the present defendants— that they wish no longer to hold in common and therefore pray a partition.
    The defendants deny the right of action ; and make title to the whole under a sale from John Gravier, to whom they alledge the whole estate J ° of Bertrand was legally adjudicated, by the sentence of a competent tribunal ; and they rely on the said sentence as res judicata.
    
    Whether the plaintiffs can try their title by an action in the present form and against the present defendants, will be afterwards discussed.
    If they can, it must be supported by making good one of their allegations :
    1. “ That the premises were not included in the adjudication.”
    2. “ That the adjudication is void.”
    I. To shew that it was not included, they say that it is no where found eo nomine, either in the inventory, the appraisement, or the adjudica, tion,
    To this we answer : that the premises being part of the plantation, there was no more neces, sity for its being specified than for the insertion of the Rice field, the Cypress swamp, or any other of its component parts.
    Great precautions, were taken, as some of the heirs were absent, that all the estate of the deceased should be inventoried. After the appoint, ment “ of a person,” as is stated in the decree who may represent them, and take such steps as are consistent with law, the lieutenant-govenor Vidal is appointed to take the inventory, he proceeds to do it m person in the presence of the attorney tor the absentees, the heir who was present, the deputy of the depository general, and the sworn interpreter—after a most minute enumeration of the most insignificant articles, they come to the real estate ; and the plantation is thus described •.
    “ The lands of the plantation the quantity f extension J of which can not immediately be calculated, because many lots have been sold; but Nicholas Gravier informs us that its boundaries go to the border of the bayou, according to the title detds
    
    If the premises then formed a part of the plantation (and it seems conceded that they did) how can a doubt be entertained that they are included in this general description of the whole ?
    The inventory being furnished, and the premises thus included in it, John Gravier, presents a petition praying that witnesses may be interrogated, in order to know whether there is any property not included in the inventory. One of them is Nicholas Gravier, (the same person who, as agent of Bertrand Gravier, had shortly before sold different parts of the batture to Toucher, to Girod, to Wiltz, to Escot ;) who consequently knew that the batture was part of the estate of Bertrand Gravier; yet he declares on oath that he knew of no other property than that inventoried. The deduction is irresistible-, that he . . ¶ , , . , . , . must have considered the batture as included in the general description of the plantad'in.
    After the inventory, the defender of the absent heirs and John Gravier. join in a petition for the appraisement of the property, and each names two appraisers ; and they four an umpire.
    This is ordered. The appraisors are sworn, and they proceed to the execution of their duty, in the performance of it, after estimating the personal, they come to the real estate, here they begin with the buildings—they estimate separately two lots, and the whole of the rest of the plantation is thus described
    “ About 13 arpents of land, at which the plantation is computed, including the garden, from which the most useful part in front is taken off— the rest consisting of the lowest part bounded b}very bad fences; the side being sold to Don Jose Navarro, one Percy and the negro Jamba,* a portion of the best. Which arpents with the 12 negro cabins, the appraisers estimate at 190 dollars the front acre.”
    I was led, at first, into a false translation of this passage, from adopting without sufficient examination that of the plaintiffs. They transíate ser-randose, “ growing narrower towards the depth.” The word ought to be, and probably is, in the original, cerrándose, which signifies inclosed. The word “ serrar,” means to saw. “ Cerrar.” to bound, fines, términos circumscribere.” Dictiona ry of the Spanish academy.
    
    On the petition of Gravier, and by the consent of a Guinault, who gives his reasons why it would be in his opinion, beneficial to his clients; the governor decrees, “ that in consideration of the consent of a Guinault, defender of the absent heirs, the estate real and personal, and slaves which have been inventoried as belonging to the deceased Bertrand Gravier, who has died intestate, are adjudged to John Gravier for the price of the ap-praisement, in which are included the cattle, under the security which is proposed, and under the obligation of paying the creditors what shall appear to be due to them and to his other co-heirs the parts that shall belong to them.?’ And he directs that as soon as the security to this effect is given, the property shall be delivered to John Gravier by the depository general.
    This is done ; and the whole of the property is delivered to John Gravier by that officer.
    With these documents before us the solution of the first question is easy—all the estate real and personal of the deceased, which was inventoried, is adjudged.
    What was inventoried ?
    All the lands of the plantation, except the lots tl»t were sold—-the premises in question formed a part Qf the plantation—therefore they were in* eluded m the adjudication.
    But it js said, in order to pass by the adjudi-⅜ . , ^ cation, they must also be included m the ap-praisement, because, the adjudication refers to that for the price. This would be true if no other consideration had existed for the adjudication, but the price of the appraisement. But as one other and important condition, is annexed, that of satisfying all the creditors, the adjudication would operate upon the premises, even if they had been altogether omitted in the appraisement. But they are not:—They are there included in the residue of the plantation, after deducting the lots sold.
    It is a mistake to say, that all the lots of which the faubourg consisted, were sold and excluded from the general description : by an inspection of the map it will be found that the number of lots numbered on the map, amounts to about three hundred ; those not numbered to perhaps as many more : in all at least 500 lots.
    In the record in this cause will be found an account of the sales, made by Bertrand Gravier. They amount to an hundred and six, or only one fifth part of the portion of land laid out into lots >—therefore, all the others are included in, and have been held and sold by John Gravier under the general words of the adjudication—in the record are some of the sales made by John Gravier after the death of B. Gravier. There are in the account 177—but 71 are lots conveyed by Nicholas Gravier to Sarpv, out of the 89, which are contained in the account as being conveyed by B. Gravier to him.
    The plantation is computed at 13 arpents, whereas, according to measurement, by the map, it is said to contain upwards of fifteen—if this be so, what is the result ? The most unfavorable to the purchaser would be, that he should pay for the surplus acres. But, as the whole plantation was sold, and the error is only in the computation, the sale could never be avoided, even were the property still in Gravier’s hands, but most clearly cannot in those of a bona fide purchaser.
    If this should be alleged, in order to shew that the 13 arpents were intended to be taken behind the part, laid out as a faubourg, it is defeated by either of the following:
    
      First: that the description arpents de face, when applied to a plantation having no other boundary designated, uniformly is construed to carry the plantation to the river, and it is neither candid nor well founded to say that, in any other cause, the defendant has contended for a contrary doctrine—he has always said, that where there was a sale giving a road, a street or a particular line as a limit, the general words could never car-
      rY grant beyond that limit; but where the land was not an ager limitatus they would-*—now, here there are no words of limit, no road or ⅜ 7 other front boundary designated: therefore the words “ de frente” relate to the river.
    
      Second: the computation of the 13 arpents (tho’ erroneous) can be no proof that they were to be located behind the faubourg, because only one fifth of that faubourg, was then sold, and it is not contended, 1 believe, that all the farm which was unsold was not included in the adjudication.
    
      Third', the 13 arpents intended in the appraisement, could not have been situated behind the faubourg, because the dwelling house, magazins and other outhouses, were situated on these 13 arpents ; and the garden and negro cabins are cx-pressly included within them. If these objects therefore are found near the front of the suburb, clearly the land that includes them, cannot be wholly behind it. It will be recollected that there are two maps before the court ; one, of the fau-bourg as it was first laid out, containing only 3 streets parallel to the river, the other, with the addition that was afterwards made. On the first of these maps, the surveyor has placed a note of reference to the house, magazines, garden, outhouses and cabbins ; we should, therefore, by this means know the exact situation of these ob iects, and trusting to this, no parol evidence wa¡$ produced of the fact if on inspection, it had not been discovered after the trial, that the surveyor had omitted to mark the letters of reference on the correspondent parts of the plan; enough however» is shewn for our purpose. The note of reference proves, that the house, outhouses and garden were situated, somewhere on the ground delineated by that plan ; that is, somewhere within the 3 streets of the faubourg nearest the river. The land, therefore, that included them could not lie behind it—again, if the court think they have no right to take notice of the notoriety of the fact that Gravier’s house and buildings were situated in the very front part of the first plan of the suburb, they may infer the exact situation of some of them, from the names of the streets— Rue Gravier passing by his house—Rue des Ma-gasins from the buildings of that description contained in the inventory—and Rue du Camp from the negro camp which lay somewhat remote from the house in that quarter.
    
      Fourth: we must look for the 13 arpents somewhere, where there have been sales made on the side : the appraisement says, that a part of the side has been sold to Jose Navarro, Percy, and the negro Samba: now, on the map we find no delineation of such sales behind the faubourg ; though we shall see several divisions in the plan that answer this description if we locate them as they ought to be in the front.
    
      Fifth: they could not be situated behind the faubourg, because the only exception in the inventory is of the lots sold—“ the whole plantation las tierras de esta habitación is put in the inventory, of which the extent cannot be calculated immediatelyWhy ? Because many lots were sold. The evident intention, therefore, was to put in the inventory, all the part of the planta, tion which remained after deducting the lots that were sold. But the batture formed a part of the plantation, the batture had not been sold—therefore the batture was included in the inventory, and forming a part of the plantation, was appraised with it. Exactly the same idea is expressed the appraisement. “ 13 Acres of land at which are computed those (the lands) of this plantation, including that (the land) of the garden ; from which (the plantation) is taken away the most useful part in front, the remainder consisting of the lowest part, &c.” The remainder after what ? After deducting what was taken off by sales. The batture was always a remainder, because it not sold. And observe that the most usejul only of the front is said to be taken off. There was then some part of the front not so use-which remained. That part is the premises question. I must here guard the court against an evident error in the translation of this appraise- . i * * ment, in the plaintifts’ brief, p. 21, where the words de la qual se quitó are translated <! from . 1 . 1 ' ⅜ which is cut off.it means taken away ; evidently referring to the sale which alone could take it away, cut off on the contrary might apply to the separation by a road. Again, “ consistiendo el sobrante en lo mas bajo,” is rendered “ so that nothing remained of it but the low ground,” changing totally the phrasealogy, so as to get rid of the substantive “ lo sobrante” and with it, if they can, of the idea of a “ residue” which naturally leads to enquire what ivas taken away in order to know what was left.
    But, say the plaintiffs, the premises could not have been intended to be included in the inventory and appraisement, because they were considered by the government as public property ; and its officers would not have permitted any inventory to be made that should have included them.
    To this, 1 answer, and I think, conclusively; that if I have proved that they were on a fair construction of the words, in point of fact, actually included, no evidence to be sought for out of that act shall be permitted to have any iveight, particularly when the premises have passed into third hands. This is forbidden by the Civil Code, and may have influenced the judge in his rejecti°n °f Mr. Lafon’s testimony, whom we offered to prove that, being one of the appraisers, ¡ie hag considered the batture as included in the estimation.
    If the plaintiffs had alledged that the premises were actually public property, they might be allowed to prove the acts, tending to shew it to be such. But let it be remembered, that their action can only be sustained by shewing it to be part of the estate of Bertrand Gravier ; and that they wish from circumstances not contained in the act to infer the conclusion that the parties intended something that they have not expressed ; in other words, to prove something beyond the contents of the deed, if not something contrary to it, which the law will not allow.
    If I sell my plantation generally, shall my heir be permitted to shew by parol testimony, that a part of it was reserved, even if I had made such reservation expressly at the time ?—certainly they would not; but if the reservation is only inferred from other circumstances, does it make the case stronger or the testimony more legal ? on the contrary it must make it weaker, and shew the impropriety of the testimony more strongly.
    The case of Segur and Marigny is in point— Segur sold to Marigny his plantation, of which a portion had been long in the occupation of the king with the old French fortifications ; and this part, together with some additional angles were 1 . , , ° occupied by the new works of the baron Caron-delet. In the sale, Segur reserved what had been taken off by baron Carondelet, saying nothing of the rest.. When the fortifications were destroyed, Marigny took possession of the ground occupied by them ; and Segur brought his suit, as well for the part contained in the old fortification, as for that taken by the baron for the new..—But he recovered only the part he had expressly reserved, the court refusing to listen to any arguments of the plaintiff tending to shew that the ground could not have been intended to be included in the sale, because it was possessed by and supposed to belong to the crown at the time of the sale. They said the only enquiry was, whether it was a part of the plantation : if it was, and had not been expressly reserved as the Spanish fortifications were, then it must pass by the general words with the rest of the plantation.
    Thus, here the batture is included in the general words, “ las tierras de esta habitación,” and no parol proof ought to have been offered or can be considered, tending to shew that it was not intended to be included in the adjudication. If that species of proof, however, were proper, we offered the most certain, that of the only surviving appraiser, to prove that when he fixed the value on the plantation, he considered the batture as formine; a part of it. This proof was overruled and on reflection, 1 think, with justice. But would be odd indeed, to refuse the testimony of the agent as to his intent, when you look for it in the opinion of others, in relation to that very intent. The only legal rule is to examine the instrument itself, and its words, I think, are conclusive.
    But if the enquiry should be deemed legal and proper, let us examine what has been the result.
    It was not intended, say the plaintiff's to include the batture : first, because the Spanish government considered it public property, and would not have suffered it to be inventoried as a part of a private estate.
    This they say is proved by the orders issued by Carondelet and Gayoso, to destroy the buildings erected on the premises, and by the refusal to permit Girod and others to improve it. If the government and the Cabildo thought the soil of this land belonged to the public, the plaintiffs must acknowledge that this opinion was erroneous ; because if this were a just opinion, then it belongs yet to the public ; and the U. States, not the present plaintiffs would have a right to recover it from me. If however, they thought, that though the land belonged to Gravier, the public was entitled to the use of it for the purpose of navigation, until it was enclosed by a levee, then their opinion would have been a legal, and that, which the plaintiffs must acknowledge to be the true, one—Now, when we can account for the acts of public functionaries in two ways; one which attributes to them legal, and the other illegal motives ; we cannot hesitate which to prefer The governor and Cabildo by these acts in relation to the building upon and outside of the levee, only enforced the general law, forbidding any building there, which might be injurious to the free navigation of the river. The people who saw only the act, would naturally conclude that it was an assertion of title ; and thus many of the witnesses who were ignorant of the distinction between the use and the right of property, concluded that the soil itself was claimed by the government, whose acts only tended to secure the use of it to the public.
    On the other hand, we find governor Caronde-in lTy-f^long after the suburb was laid out, directing Bertrand Gravier to repair the levee, afterwards requesting his permission to make use of it, as a place to lay up the royal-masts.; and after Bertrand’s death, addressing a similar request of John Gravier. This testimony is highly important, not only to destroy the inference drawn by the plaintiffs from the governor’s acts; but as shewing expressly that the governor at least, thought at that period that the batture was included in the adjudication, and. had become the property of John Gravier.
    That the opinion of its being public property, was not common to all the officers of government, nor to all the inhabitants, is evident by the purchases made of part of the batture by Foucher, Girod, and others ; and by these sales being publicly passed in the office of the notary of the government. Mr. Foucher, indeed, says expressly, that he was ordered by the baron de Caron-delet to make the road, because he had bought the batture, and that for this reason, he thinks if he had had the funds for the purpose he might have improved the property without opposition.
    I conclude, therefore, that the acts of the Spanish officers do not, as is supposed, shew that they thought the premises were public property ; that, on the contrary, the facts disclosed by the defendants testimony are inconsistent with any such opinion on their part •, but that both may be reconciled by supposing, as we ought in common -justice to suppose, that those officers were acquainted with the law which acknowledged the property t» be in Gravier, but gave the use of it, in its then situation, to the public.
    It is next said, that we cannot believe the bat-ture to have been included in the estimation, which amounts to 2400 dollars only, when they have proved that the batture alone was, at that time, worth four times that sum.
    First, let us settle the fact. What is the proof of the then value, now before the court ?
    
    . Several witnesses nave been examined to state their opinion on the subject, and several of them have stated that they think it would have been worth 10,000 dollars. But this testimony must be received, from the nature of it, with great cau* tion.—The period referred to is more than twenty years since—-the property has continually been increasing both in extent, importance and value, and is now worth an immense sum. It is difficult even for the most dispassionate individual to say now what were his ideas of this land at a remote period when it attracted little attention, and when he had no interest in fixing a value on it—but when we add to this difficulty the consideration that the most angry passions have, for fifteen years been excited by the different contests relative to this property, there will be no difficulty in supposing that these passions may have impressed on the minds of very honest men, false ideas of the value when looking back to any given period.
    Fortunately we have better grounds for our judgment of the true value at that day, than opinions formed now, of so fleeting a thing as the value of land, during a period of twenty years. We haVe the best materials—the price that was actually given. Gravier sold many of his front lots-—the deeds are before the court. Some he sold with the batture in front of them ; others without it. If we find any material augmentation of price in the consideration of those sales, where it is included, it will be just to put that augmentation to the score of the batture—if there be none, the fair inference is that then it had no value : in other words, that the cost of reclaiming it from the river would have been as much, or more, than the value, when it was done. And this we shall find most conclusively to be the case.
    On the 22d of March, 1794, Bertrand Gra-vier sells to Girod a lot for 350 dollars, without including the batture—on the 12th of April of ¿he same year, he sells him an adjoining lot of the game dimensions, expressly including the batture in front, for the same price of 350 dollars. And about the same time, he sells to Escott, to Wiltz, with the batture, for the same price, 350 dollars; and by another conveyance of the same date a smaller lot of 39 feet front to Girod, for 233 dollars, all including the batture. Now this price of 350 dollars (which appears to have been current at that time for the lots indifferently, with or without the batture) is somewhat less than the value some years before, as appears by the deed to Mr. St. Jean, adjoining Girod’s purchase, page 90 ; to Mr. Vessier, 89 ; in each of which 1950 dollars was given for 240 feet front, or four lots, without the batture, so that property seem to . . . J have been falling instead of rising in price, about that period.
    It may be said, perhaps, that the testimony of Mr, Fpucher contradicts these facts; but, in truth, it does not. He purchased better than three lots, 185 feet, for one thousand dollars with the batture—now this is something less than, as we have seen, was the price of front lots about the same time, with or without the batture. It is true, he says, that two or three hundred dollars was the relative price of the batture in this transaction ; but this kind of testimony is, from its nature, uncertain—what is certain, is, that the whole three lots were sold en masse, with the batture, for the usual price of three lots alone, without designating how much was given for the lots, and how much for the batture—and what were the loose declarations and chafferings between buyer and seller as to the value of particular parts of the property, cannot now be en-quired into or ascertained.
    On the subject of value, we have also another criterion to judge by, resulting from the experiment made by Mr Girod : he says that his brother undertook to fill up one of the lots on the batture, at a place where, according to all the testimony, it was most practicable ; and that he was obliged to put on it 7 or 8000 loads or earth. Now, this, at the lowest estimate of the labor, would bring the lot to more than the price at which a front lot, which wanted no filling up, could be purchased ; no prudent man then, would have given any thing for it, unless he could have foreseen the natural and political changes which have encreased its value—that value, then can raise no presumption that it was not included in the appraisement or adjudication, because it has been proved to have been very trifling.
    The plaintiffs are mistaken in supposing that we claim the batture as an appendage to the plantation : we claim it as an inherent part. No authorities are necessary to inform this court that alluvions are incorporated with, and become a part of the original soil, as much as the annual growth of a tree is incorporated with and forms part of the ancient stock. We have said that the right of alluvion is accessory ; but that the allu-vion, when formed, is a constituent part, and when the lands of a plantation were adjudged, every part of these lands went with it.
    “ But the batture cannot be included in the adjudication of the farm, because it was separated by lots which had been sold, from the rest of the plantation.” Admit, for a moment, this fact. Which I shall presently disprove : let us examine . rr 1 What ettect the argument ought to have—Gra-vier had a plantation, out of which he sold a line of lots extending through the breadth of it at his death all his property is directed to be inventoried, and the officers who make it say, “ we put in the inventory the lands of this plantation, of which we do not know the quantity, because many lots have been sold.” Is there not here an intent, well and clearly expressed, of putting in the inventory all the plantation, excepting only what was sold ? Afterwards, when the articles inventoried come to be appraised, can we suppose that the appraisers intended to exclude from the appraisement any part of what had been inventoried ? If we cannot suppose any such intent, we must believe that by the expression, “about thirteen arpents of land at which that [viz. the land] of the plantation is computed,” they intended to give an idea of the whole farm : and when they say, “ of which the most useful part has been taken in front, they meant to exclude the lots sold, but certainly to appraise the rest. The adjudication then closes the transaction and gives to Gravier all that had been inventoried, at the price of the estimation, and under the further obligation of paying the debts of the estate. No matter then, what division Bertrand Gravier had made in his lifetime, of the plantation ; what parcels he had carved out of it; in * what direction they lay ; or how they cut the farm ; it is inventoried except the parts sold; it is estimated by a computation of the number of acres, and no part of it being excepted but the part sold, all the rest is adjudicated. It is dis-ingenously asserted that all the lots unsold in the suburb, are separately appraised, and are not included in the general words of the sale — An inspection of the map, the record, and the appraisement will shew the unfounded nature of this assertion. By the map near six hundred lots will be found to have! been laid out in the faubourg ; by the record the number sold by Bertrand Gra-vier amounts only to 107; and by the appraisement only two lots are separately valued, except those sold to Nicholas Gravier in trust, which trust was not discovered until the first inventory was closed. These lots were then inventoried for the reasons I have stated : that they came under the exception in the inventory.—They were actually sold, and therefor, did not pass by the general words. But the batture was never sold: and therefore did pass.—All the other lots, except the 107 sold by Bertrand Gravier, and the two specially inventoried, passed by the general words to John Gravier, and have been sold or are now held by him.
    The plaintiffs have said that the adjudication is a kind of partition, and that á partition is likened to a sale—-be it so. 1 he inventory, appraisement and adjudication then together form an act of sale—put it in this shape and I will venture to affirm that not an individual who is at all conversant with our customs and laws, can have a doubt on this case.—I have a plantation- part of which I have disposed of in lots ; and I sell to A. B. the lands of my plantation, of which I cannot calculate exactly the contents, because I have sold many lots; but I estimate the rest at about thirteen arpe its, which consists of the loiver part, a part of the best being taken off in front; which thirteen arpents I sell for 190 dollars the front acre, amounting to 2470 dollars—Is there a tribunal in the state, I say, which at any time (more especially after 20 years) would listen to my heirs who should claim any part of the farm, no matter where or how situated, as not being included in the sale ? Mistakes in the computation of the contents give rise to other actions ; but none would lie in the present instance where the whole was sold under an approximate calculation of the contents. At any rate it could only lie for the value of the additional number of acres.
    II. But, say the plaintiffs, the adjudication is void—and therefore it cannot avail you, even if the premises be included in it.
    
      Before I examine what are the reasons they aí- . , J ledge to prove this nullity, it will be proper to examine whether the court can listen to the allegation, however well supported.
    The distinction between judgments that are null and those that are only unjust, need not be enlarged on The one, says Febrero, 1. 3, c. 1, s 4, p. 496, is called so when it is given against the form and solemnity prescribed by law—the other (the unjust) is that which is given against the right of the parties.
    The unjust sentence must be appealed from.
    That which is null may be avoided, either by an action of nullity, or by exception when it is pleaded.
    But if attempted to be avoided in either way, either by action or exception, it must be litigated with the party to the original suit. (Febr. ubi supra, no. 503) “ previniendo lo primero que la uullidad se ha de controverter en contradictorio juicio con audiencia del colitiganti.” This is important and destroys the plaintiffs exception, as opposed to the present defendant. Within the proper time they might have brought their suit against Gravier, to declare the judgment null ; or if Gravier pleaded the judgment they might alledge the nullity by way of exception. But as to third persons that exception can never be made, for this reason, that no one but the origi. ml party can be supposed capable of defending the judgment ; and the law, very wisely, will not permit his dearest interests to be discussed between strangers. Among the many causes of nullity enumerated in the books is bribing the judge. Would any court permit a discussion of this charge in the absence of the party against whom it is made? Would they impose the necessity upon every person who had purchased under a judgment to defend it against such an allegation ? The answer is contained in the authority I have quoted The nullity of the judgment must first be pronounced in a suit to be brought against the original party.
    “ Every sentence, says Febr. ubi supra, no. 494, has in its favor the presumption that it has been given apeording to the form prescribed by law, with a knowledge of the cause and by a lawful judge, with proper jurisdiction, especially if he be a superior judge ; and if it be an ancient one, the presumption is increased that it has been preceded by all the necessary requisites and solemnities of essence and substance.” This is the language of common sense ; and the corollary from these positions is, that every sentence, more especially an ancient one, must have its full effect until reversed ; which, as we have seen, must be either by appeal, if it be unjust, or by action or exception of nullity, if it be void; and ’n e^ier case opposition to the original party.
    “ Quod nullum est nullum potest habere ef-fcctum” is not true as respects judgments ; every sentence being, in this respect, voidable only and not void, since all sentences are valid until rescinded, and since a sentence which is called void may be made valid by the assent of the par. ties (Febr. 495) which could not be were it to. tally void.-—The first process then, where a judgment stands in the way, is to pray its rescisión ; but not to proceed as if it did not exist.
    The passions and interests of suitors would lead to endless litigation, if care were not taken to put a period to discussion by a sentence which, after a proper lapse of time, must be final The authority of the res judicata, therefore, became sacred in the civil law it was guarded by fixing the period for appeals against the allegation of ipjustice ; and a limit of 60 days was also fixed for the charge of nullity brought against the essence of the sentence. A distinction was, however, made by the law (3 part. 26, laws 3, 4, and 5,} between notorious nullities and those which were not of that description : the first being avoidable at every period ; the others being barred by the lapse of 60 days. A nice discrimination was also drawn by the ingenuity of the lawyers between the suit to avoid a sentence, and the exception to avoid it when it was pleaded in bar, They made or applied a maxim “quae temporalia J ' r 11 sunt ad prosequendum, sunt perpetua ad excipi-endum ;” and they said that though a suit in nullity was barred, y et, when opposed as a bar the nullity might be shewn any time ; and by virtue of this law and this distinction, the door of litigation was kept constantly open.
    To avoid the manifest evils arising from this state of things, a law was passed (Recop. de Castile, lib. 4, tit. 17, law 2.) which declares “ si alguno alegare contra la sententia que es ninguna, puédelo decir hasta sesenta dias desde el día que fuere dada la setencia, i si en los sesenta dias no lo dixera no sea oido sobre esta razón ; Stc. y este poique los pleytos ayan fin.
    
    This law would seem to put an end, after the expiration of 60 days, to every attempt to al-ledge any nullity, whether notorious or otherwise, whether by action or by exception. Never were words more clear or precise, or better calculated to remedy the evil growing out of the abuse of the distinction in the partidas or the in. genious device of the lawyers. “Ningún,” no party, whether plaintiff or defendant, “alegara” shall alledge, in any way, whether by action or exception—and to avoid ail cavil about notice of the sentence, the limitation of 60 days, is to begin from the time in which the sentence is “ giv-enHow the plaintiffs can expect that the court ■ wj}| listen, to their exception in the face of this 1 positive and express statute, I reaily cannot well imagine.
    There is one case, however, in which equity would seem to require some relaxation of the rigorous words of this law. But that cast is not the plaintiffs : and even were it presented, 1 know of no power in this court to dispense with the positive words of a law, in favor of what they might deem its spirit : a mode of decision which they are expressly forbidden by our code to pursue. The case I suppose entitled to equitable relief is the very extraordinary, and perhaps impossible one, of a judgment against a person who was never cited, and who had no information of the judgment or proceedings, until the limitation had expired. Here equity might, perhaps, be required to come to his relief; but the utmost that even the most liberal equity could do, would be to place him in the situation he would have been in, had he received notice of the sentence when it was given, by giving him the sixty days. But this I repeat is not the case of the plaintiffs- If the court could give relief against the words of the statute, would they do it in this case ? What is the plaintiffs equity ? Is not this, on the contrary, precisely such a case as the law intended to bar ? A plain statement of their conduct will answer the question.
    
      Bertrand Gravier died in 1797. They reside . „ , , . J ' . m or near Bordeaux, a sea port which commum-cates more than any other with this country. Yet, from that time, until 1807, we hear no more of them, than if they were not in existence; yet, the death of their brother must have been known to them ; yet, they must have made some enquiry into his succession, and must have heard of the disposition of his property, and more probably still they must have been minutely informed of it, as soon as the communication was opened by the peace of Amiens, from their attorney, Mi Guinault: I say their attorney, because he was as much so, being appointed by the court, as if he had been named by the parties—he was sworn to do his duty, and an important part of that duty was to communicate the decree to his clients. Every officer shall be presumed to have done his duty until the contrary appears. If the sheriff, whose duty it is to serve process, shall return that he served a citation ; and judgment is given against the defendant by default—he cannot avoid the judgment, but has his relief against the officer : because the court will suppose every officer to have done his duty. On the same ground, it is but fair to argue that Mr. Guinault did his duty, and gave the notice in time. Still the parties are silent for eleven years. Then we know that notice was sent them—a gentleman, high at bar and now on this bench, grave them full # ^ and minute information (see plffs. case 33) of the va|ue Qf t]ie pr0perty and their claims to it. This opinion was given to, and forwarded by the gentleman who now acts as attorney in fact for the plaintiffs, and in that quality has signed the appeal bound for them ; Í mean judge Pitot, who, about that time, began a very active correspondence with a M. Otard of Bordeaux, who wrote to him every two or three months, in behalf of the plaintiffs, during the ten years that have since elapsed —and in 1817 two powers of attorney come out from the different plaintiffs, one directed to judge Derbigny, who has since transferred it to judge Pitot; the other to judge Pitot himself, who now acts as the attorney in Ttct f >r ail These powers arrived in October 1817, and the suit is brought in April 1818. Now, let us date from any of the periods above mentioned, the presumptive notice from their attorney, at the time of the sentence, 21 years ago : the transmission of Mr. Derbigny’s opinion eleven years since; or the authentic and notarial evidence of notice contained in the powers of attorney, and the shortest and most favorable of these periods gives more than three times the limitation contained in the law. Therefore there is no equity, arising from their want of notice of their rights (if any they have,) that would induce the court to dispense with the r words of the law, if they could do so.
    Is there any from the motives of their silence ? It is in evidence that one of the defendants has, for twelve years past, been exerting himself to assert the title of Bertrand Gravier to this property ; that he has had to contend against the interest, the passions and the prejudices of the community in which he lives; against the efforts of the territorial government, and the oppressive exertions of the executive power of the Union ; that in the contest his fortune was sacrificed, his business lost, and his life repeatedly exposed to imminent danger from popular resentment. During the whole course of this struggle. not a word is heard of the cl ems of the heirs in France. The period was not arrived ; the time was not “pro-pics” according to the expressive phrase of their agent, to assert their rights—when however that disgraceful scene of oppression had closed ; when perseverance, the justice of my cause, and the independence of the judiciary had restored me to my rights ; then, it might be supposed, the most timid claimant might venture to appear ; the most unreasonable might be satisfied with the extent of sufferings, sacrifices and dangers that had been incurred to prove his title—not so the plaintiffs, the time was not yet sufficiently “propicethe way must be better prepared : the property had not vet acquired all the value of which it was sus-J 1 ceptible, my exertions were still wanted to overCome two other obstacles before they would dare ^ to intimate that what had been done was for their benefit: there was a claim of the front proprietors that must be tried and defeated : the assent of a jury of inhabitants to the making of the levee* must be first procured. Then was the “ propitious time” when every risque had been run,every danger encountered, every sacrifice made, every obstacle removed, every doubt on the title done away, ever)' prejudice overcome; then for the first time they announce their claim : for I pray the court to remark that Mr. Pitot, their attorney, declares that he had never given any notice of his constituents’ claims to the defendants ; although by the record it appears that, for three years past, he had given repeated orders for the assembling of a jury of inhabitants, to determine whether a a levee should be made ; and that, on the application of the present defendants acting as, and styling themselves proprietors of the batture ; and that two of these orders had been given since he received the powers to commence this suit. What was more natural if concealment had not been intended, than to have told the defendant, “ you are taking a great deal of trouble for property that is not your own. It is claimed by the heirs in France, I have the powers in my pocket.” But no ! nothing was to be done that should put a stop to my exertions, the most studious concealment was observed ; and it was not until a few days before this suit was brought, that I had any the • , . ° . -.TT, slightest intimation that it was intended. 1 have stated the conduct of the defendants as it appears from the record—I have made few reflections upon it, and those few, with a moderation which the circumstances of the case would have excused me in departing from.
    It has been suggested that I make these statements, with the hope of gaining my cause by an address to the feelings of the court. It is true ! But they are the most noble feelings of the heart that I address ; feelings never at war with the soberest dictates of sound judgment; feelings that must always be alive in the breast of an upright judge.—Love of justice, hatred of oppression, contempt for concealment and art. These are the •only feelings I wish to enlist on my side—and these must dictate the decision, on this branch of my argument that there is no circumstance attending the delay of the defendants, that could induce the court (if they had the power) to dispense with the limitation contained in the statute against the allegation of nullity ; that on the contrary, the delay appears to have been wilful, and apparently from motives highly unequitable and unjust.
    
      But if the two inseparable objections I have stated could be removed ; if the allegation of nullity of a judgment could be made in a suit, between others than the parties to the judgment ; and if there were no limitation to the time of making such allegation : let us examine whether in reality, there is any such vice of nullity attached to the sentence, which adjudicated the estate of Bertrand Gravier to his brother.
    The first cause of nullity assigned is, that the plaintiffs were not parties to the judgment, not having been cited, or represented, in the mortuary proceedings of Bertrand Gravier. They do not deny that a defender for the absent heirs and the goods of the deceased was appointed and sworn: that all the proceedings were regularly communicated to him ; and that he expressly assented to the adjudication, and was present at, and approved of, the inventory and appraisement; but they say, that his nomination was illegal : or, at most, could legally extend only to the taking the inventory and appraisement, as conservatory acts. This then leads to two inquiries : are there any cases, in which absent heirs may be legally represented, without their knowledge, by a person appointed by the court ? Was this such a case ? Both the question are answered explicitly by the plaintiffs themselyes, in the affirmative.
    
    
      First, their declaration, page 11 of their case, where they say ; “ as the inventory and appraisement were measures conservatory and useful to J . all. We have an objection to admit that a defender ex officio could represent the absent heirs, thus far.” There are then cases in which such appointments are lawful : that this is such an one is answered by their conduct in this very cause. This suit is, as the proceedings after the death of Gravier were, according to their own definition of them, a suit in partition. Three of the defendants in this cause are, as three were in that, absentees. One of them is also, to make the parallel perfect, a minor. Now, if the plaintiffs thought that a citation and personal notice were so necessary, as to render the proceedings void, it omitted, they would have proceeded to give that personal notice : if they thought the powers of this court did not extend so far as to name a defender for the absentees, they would never have pursued that course.
    Yet, strange as it may appear, they have actually pursued in this cause the very course, which they stigmatize as illegal and unjust in the judgment, which this suit is instituted to set aside.
    Three of the defendants in this cause are represented, without any personal citation or notice, by a person appointed by the court to defend their interests—and this too under the same law which governed the Spanish tribunal : (for we have no statute changing the law in that respect) an(j on motion of the same counsel, who now gravely tell us that the first appointment was ilie-gal—of two things, then one ; the appointment of the defender for the absent heirs of Gravier was legal, and then your objection fails; or your own suit is infected with the same fault, and you can obtain no relief under it. This example, too, applies to another objection : that in partitions, each party has an opposite interest, and that, though it were lawful to appoint a defender for each, yet one attorney could never legally represent all. The present suit meets this objection in all its points. The same persons who were illegally (as these gentlemen say) represented by a single attorney, before the Spanish tribunal, are here collectively represented in a suit for partition of the same property, by the same counsel ; and only one attorney is appointed to represent the separate interests of three defendants, who are absent. It must be confessed that, if the objection be good, it is most unfortunately urged. But greatly as I rely on the authority of the plaintiffs against themselves, I do not rely on that alone. I have (they will excuse me) better authority I have the uniform practice of the courts of this state, of the territorial government, and of the Spanish tribunals which preceded them ; all fob lowing the same rule of practice, under the same , l-ii • i • law, which has never, in this respect, been changed ; and all uniformly appointing ex officio defenders for absentees, in cases of ‘ cessio bono-rum,’ in common suits where their interests were incidently drawn in question, and in mortuary proceedings like the present. So that to declare all judgments void, where this step has been taken, would unsettle the titles to property and produce incalculable confusion and distress. As this is a rule of practice, if there were even no law on which it is founded, though it might be changed in future yet former decisions under it must stand. But there is law and positive law, and the plaintiffs themselves quote it.
    The words of Ayora are that, in case of absent heirs, the judge may order the absentee to be cited ; and if he do not appear, and be not found in the country, nor be expected shortly to return ; then, if all this appears by information taken thereof, he may order that he be provided with a curator or defender of his goods, who may do all the acts of the partition. ‘ But’, he says, ‘ we must observe that, in order to give validity to the acts of this curator of the absent hew, it is required that he should be cited at his house and by his edicts ; because, otherwise a curator cannot be named so as to prejudice the absentee, accord-to Baldus and Salicetti who down this 
      
      form 0f dividing against an absentee—although J , . . J . ⅛. ° , . ... , . , this m practice is not observed, ror the judges, having first taken information as to the fact ofab-sence, are used to appoint a curator for the goods of the absentee, without any citation ; which, I believe, is the true practice and sufficiently correct ’
    This is express law, and of the very highest authority—but this, says the plaintiffs, was loose practice, and Febrero has altered it; but in the passage they quote, I think he confirms it. ‘ He (the judge) [page 12 of their brief] should there, fore provide the absent with a defender, jointly with whom the partition and its incidents may be gone through : but it must previously be ascertained, not only that the person is absent, but that there is no expectation of his returning shortly; and that, on account of distance, it is not easy for him to come, or to send his powers for some one to represent him.’ Now take these words in conjunction with those emphasized by the plaintiffs, and what do they prove ? That, wherever the absentee cannot be reasonably expected to attend, there the judge may name the defender—but that the difficulty of communication is a matter to be decided by the discretion of the judge, who, according to the circumstances of the case, must determine whether the citation is to be sent or not. And if in the present case he has exercised it unjustly it is ground for an appeal, not for an exception of nullity.
    
    But there was not even injustice. There would have been if the estate had been left in the hands of the depository general, to be consumed by costs and charges ; until an opportunity could have been found in time of war, to communicate the case to the defendants, and until they could send their powers to receive it.
    The second objection of the plaintiffs to the adjudication is, the adjudication of the whole estate together.
    It is difficult to say, at this distance of time, and under the astonishing change of eircumstanT ces which this country has undergone, whether a discretion, with respect to property was well or ill exercised. If the country had remained under the government of Spain ; if they had extended their restrictions and oppressions in all their force to this colony ; if it were in the state of convulsion, that all their colonies now are ; then the adjudication for the appraised value would have been highly beneficial, for the property would have been of no value.
    But it has chanced to pass under an enlightened and free government, and the estate is now worth more than the appraised value—at the time, the one event was not. more probable than the other. To do justice to the motives of the tribu-J nal, we must place ourselves in the situation in w]1ich it stood. We must know all the circumstances: we must hear all the arguments : we must have data which nothing but identifying ourselves with the judge can give. From all which it results that it is impossible for any one to pronounce whether the judge of a Spanish tribunal, twenty-one years ago, acted discreetly or unjustly in adjudging to one heir the property at a fair appraisement, and directing the price to be paid to the other : common candor and the principles of law, which I have quoted, direct us to pronounce his judgment ju 4. And when we consider that the property was given to the heir on the spot; the price, to those who were at a distance and could not conveniently use the estate, there is additional reason, from fact, to confirm the presumption of law. Fortunately I am not obliged to perform this task. This court has no right even to inquire whether the judge acted wisely or impartially, or even illegally, in making the adjudication. They can only inquire whether the judgment be clothed with the ordinary forms of law. To go further, under any circumstances, would be to allow appeals from the old decisions of the colony ; to revive disputes long since terminated, to unsettle estates, and to introduce disorder and endless litigation. Togoeves^ so far, under the circumstances of this cause, would as I have shewn, be illegal.
    But as this is a clear case, the task of shewing that the judge had the power to make the adjudication he did make, is easy. I shall proceed to perform it. There are four modes by which a partition may be made : an actual division, a li-citation between the heirs, a sale and partition of the price, or an adjudication to one of the heirs at an appraisement with a like partition. The judge must determine which of them is most consistent with justice—in deciding this, as in any other sentence, he may err from ignorance or injure by design ; but ia either case, there is no nullity. Here the judge, by the consent of the representative of the absent parties, preferred an adjudication ; and, at the end of twenty years, we are first told that he had no power. A single authority will shew that he had. Ayora, part 1, c 1, no 111:? 12, states explicitly ‘ that, where the division is convenient, he must divide the estate. Where it is not convenient, he must adjudge it to one, with directions to pay their share of the price to the others.’ But who is to judge of this convenience ? The same intelligent and accurate author gives this obvious answer : the judge no. 13. 5 Quia totum hoc pendet ex arbitrio judiéis,’ according to the excellent reasoning of the plaintiffs 5 all this depends’ * totum hoc pendet,’ not on the of the judge who hears the cause and ⅜ J o knows the circumstances, but on that of his successors who never heard the parties, and from the nature of things must be ignorant of the circumstances.
    In the same author, Part 3d, Qutestio 3th, No. 11. we find the same power in the judge recognized, even more expressly, ‘Lljufz ordinario, es cosa llana, que puede hacer las dichos adjudi-cationes a uno enteramente o en parte, y condenar le, que de la mitad de la estimation al otro cohe-redoro, quando aquella cosa no recibe commo. da division ’ The same doctrine is found in Fe-brero. part 2, lib. 1, c 2. \ 2, no. 37, where, he says, the judg* may make the adjudication ‘ a su arbitrio’, at his discretion.
    These authorities and this train of reasoning, induce the defendants to think that the judgment cannot be impeached—and that the premises are included in it.
    But, independent of these, the plaintiffs cannot recover.
    1. Because they have not proved the allegations in their petition.
    2. Because it cannot be brought in its present form against the defendants.
    3. Because under the circumstances disclosed by the proof in this case, no suit whatever will lie r- i r i • lor the recovery ol this property,
    4. Because the action is barred by prescrip-tlOn.
    I. The plaintiffs alledge, “That John Gravier, their co-heir, has disposed in favor of the defendant Livingston and the ancestor of the other defendants of his undivided shares in the premises, bv virtue of which, transfer the said Edward Livingston, and the heirs of said De la Bigarre, hold the said batture in common with your petitioners.” And, inasmuch as it does not suit their interest any longer to hold the property in that undivided estate, they pray fora ‘partition.’
    Now if the statement in this petition had been proved, the court might possibly have granted its prayer: but the most material allegation is not only unproved, but negatived by the testimony — Gravier did not sell his undivided part: we do not hold and never did hold in common with the plaintiffs. The action for a partition never lies but where all the parties acknowledge a community of interest, and the only question is in what manner that community is to be destroyed by a particular appropriation of the parts. To permit an enquiry of the merits of a separate title, in this form, would be to create confusion and avoid the simplicity anti certainty prescribed by the law, which the plaintiffs quote. That law (the act for establishing our practice) requires that the plain- ■ „ ,. . , . tin shall state his cause ol action ; but will it per-him to state one cause oí action and prove another ? We need not be told that the law was intended to avoid the difficulties attending the niceties of different actions; and that the plaintiffs are not obliged to give to theirs a technical name. But, it certainly was never meant to enable the party to alledge one thing and prove another—= or to obtain a relief inconsistent with the facts they alledge ; in asking for a debt, I cannot prove title to land—-nor can I ask for land because the party owes me a debt. I cannot alledge a community of title and obtain a division, when no community is proved—a judgment can only be given, in conformity with the allegata et probata ■—when these two differ, no code permits relief to be given.
    II. Again, a cogent reason for confining the plaintiffs to the proof of their allegations is this, that unless they do make out the proof, this action will not lie against the present defendants. By this action, I mean one such as this purports to be, for the division of property acknowledged to be held in community. If the defendants had bought, as the petition alledges they have, the undivided share of Gravier in the premises, there would be no difficulty or hardship in calling on them for a division. They áre to be prepared for it: it was an inseparable incident to their title. But the case is widely different, when they have purchased the whole and hold it under a title, which excludes the idea of community. In the first case, the intervention of their vendor in the suit is unnecessary ; they represent him completely ; he has claimed no right, but such as are acknowledged by all parties. But in the latter case, where he has sold the whole, his intervention becomes absolutely necessary for the purposes of justice. Or rather it is necessary that the affairs of the community should be discussed between him and his co-heirs, before the purchasers can be disquieted by suit; because, there may have been a partition, and the particular part he has sold may have fallen to his share—if no partition has been made, the same part may be included in the portion of the vendor, by a future division, and then the holder will not be disquieted.
    
      Because, if the holder of the land be even permitted to enter into the merits of the adjudication or partition, under which the sale was made, the character of the seller, in case of fraud being alledged for cause of nullity, will be tried in his absence.
    
      Because, if the plaintiff should invalidate the adjudication and recover in a suit ignorantly or badly defended by one purchaser, he might af-^erwari^s be defeated in his attempt against another, or against the co-heir himself: and then the tribunal would be under the necessity of giving contradictory judgment on the same title.
    Because if the süit be sustained, it leads to a most oppressive multiplicity of actions, each individual purchaser would be liable to an action ; each one, however small the parcels of the property he possessed, must submit to a division. Whereas if the partition were sought between the co-heirs, a large division would be made of the whole land ; and the holders of all those, at least, falling within the portion of the seller, would be quieted in their possessions. In the present case, the evil would be strongly exemplified, where there are at least a thousand different purchasers, against each of whom separately, a suit would lie, with the same propriety as against the present defendants.
    These considerations and others that might be urged, probably induced the Roman jurists to establish, and those of Spain to adopt that rule on which we have insisted : that no action shall be brought against the purchaser of a particular portion of an inheritance, unless the purchase was mala fide, or it was made for an under value, or the seller was no longer to be found :  in all other cases, the action must be directed against the co-heir who had sold. But even he was not liaable for any encrease of value in the property, nor for any loss of the price in his hands, if he sold believing that he was entitled tn sell. Not confining the “belief,” as the plaintiffs contend, to his being the heir ; but to his- having a right to the inheritance  and by a necessary deduction from this law, the purchaser could not be liable in case there was a warranty. For if there could be a recovery against the purchaser, and he could recover over against the heir who had sold, the provision in favor of the heir would be nugatory-
    These are the principles to be gathered from the authorities in the margin, which were read on the hearing, and we are mistaken if any of these positions justify the charge so liberally made of our wishing to revive the subtle distinctions of the Roman practical jurisprudence, or sheltering ourselves from a just claim by the niceties of special pleading.
    III. It remains only to shew the good faith of Purc^asers to bring ourselves within the first j and that of the seller, to bring him within the see* 0ll(j Qf these rules.
    The purchasers (the present defendants) were not in good faith, the plaintiffs say, because they had seen the adjudication, and therefore they must have perceived its nullity. This is supposing the defendants to possess the same accurate knowledge of law (which with proper humility they disclaim) that distinguishes the plaintiffs ; and has enabled them to perceive nullities, where the plain blunt understandings of the defendants could perceive none. They saw a sentence clothed with the ordinary formalities of law, rendered by a superior judge with the advice of a most learned assessor; they saw the seller in possession under it, then for near eight years ; and they did not possess those lights, which have enabled the plaintiffs, so much to their own satisfaction, to prove that the Spanish tribunals, the Spanish authors, and the American judges have until now erred in the construction of this law.
    It was a want of good faith also, say the plain, tiffs, in the defendants, to conceal the purchase they made from Gravier, during the suit carried on by him with the city. This assertion is not only irrelevant, but unsupported by evidence and untrue. It is irrelevant, because it does not, were it true, substantiate the charge. An act, to constitute mala Jides, must be one that tends to defraud the party complaining of it, or some other. Now, suppose it true that the defendants had bought of Gravjer, and that, before he denied possession, the city had disturbed him; and they (the purchasers) had suffered him to prosecute a suit, to be quieted in the possession before he delivered it, and during that time had concealed their purchase : where I ask is the injury ? Where the ill faith ? AVhere the slightest inconvenience to The parties or to any other mortal ? The act therefore alledged, as evidence of ill faith, is one perfectly correet even if it had been true and they had proved it. But the fact is not so. There was no concealment. The agreement for a purchase was known to hundreds, and might have been to all who chose to make the inquiry. To constitute concealment in the unfavorable sense in which the gentlemen employ it, there must be some obligation in a legal, a moral, or honorable view to make the disclosure, here there was none : nor was it ever denied, where inquiries were made, even to satisfy the idle curiosity of uninterested persons ; those who had an interest in the subject were informed of the purchase by matter of record for Gravier, his petition against the corporation states that he had bargained for the sale of the property, but that the pur-C^asers not pay in consequence of the claim set up by the corporation.
    Having shewn that the concealment did not ex. 1st, it is useless to observe the irregularity of the plaintiffs’ adverting to that which does not appear on the record.
    The other charges of ill faith, are directed against John Gravier, in the shape of a dozen fretful interrog-atories, tending to shew that he was in bad faith, because he knew his title was bad, and because he was in bad faith—but neither question nor answer to shew or even intimate one reason, why he should be supposed connusant of the defects of his title or suspect that a sentence rendered by a learned judge, according to the forms of law, was void.
    There being good faith then, both on the part of the seller and the purchaser, both the rules of law apply, and the action cannot be maintained. One word on an allegation connected with this, and we have done on this point: page 34 of their case, the plaintiffs say that the defendants have produced a sale of two-thirds only of the property ; and they insinuate that we withhold the other sale as a finesse Neither the charge, nor the expression in which it is conveyed are very courteous. We have better means however of repelling it, than by saying we deferred producing the sale until the time should he more propitious. We offered to produce the best evidence of it in our power, and were prevented by these gentlemen,  who now candidly impute the withholding it as an imposition on the court. We actually did produce the next best evidence (p. 269) in the partition deed between the purchasers, and in the delivery of the separate part to one of the defendants by a judgment and execution of the district court of the United States.
    IV. The last bar to the action of the plaintiffs is contained in the exception of prescription.
    This is a prescription of the action, not a prescription to give a title to the land—Ayora 3, 31, 7i. 13, and Febrero, 1, 2, § 1, (15) fix itat ten years when the parties are present, and twenty when they are absent; if there has been a partition and the parties are silent during that time. This must necessarily mean even a faulty partition, because if it be applied only to a good one, there would be no need ofli imitation.'—Now the plaintiffs tell us that an adjudication to one heir is a species of partition but that this partition has been a faulty one. Then here has been a faulty partition—but it has been submitted to, and acted under, for twenty years and upwards.—Therefore prescription applies. It also comes within the express provisions of one statute, which li-niits tlie time of accepting an inheritance t'o twen- ^ yCars> Code, 164 art. 94. Now the first act of acceptance is the bringing the present suit.
    It ought to apply more strongly in this case from the prodigious amount of Bertrand Gra~ vier’s debts, and the probability that in the lapse of time, John Gravier has been forced to pay them.
    It is supposed that one of the plaintiffs, Jane Bordier, stands in a better light than the others. —But in truth it is, if possible, worse. She is equally bound by the adjudication.—The limitation of the act to rescind it equally applies to her ; or, on the most favorable construction, can give her only the limited time after she came of age ; and that event took place near three years before the bringing this action. The two rules relative to the protection of sales in favor of bona fide purchasers and bona fide sellers, suffer no exception in favor of minors. The prescription of action, it is true will not run against her, though it will against the other defendants ; but though not barred by this branch of the defence, she is barred by her own act.
    By her guardian, in 1810, she protested against the sale of the batture, and brought a suit to account against Gravier, not against the holders of the batture - here if she had any right, she took the proper means to assert it; but being; convine-ed that she had none, the protest was revoked, (pages 66, 71, 74 and 115) and a new petition filed (page 119) to which the purchaser of the batture was made a party and the price was attached in his hands. Nothing could be a more formal confirmation of the sale than this act : for were it void there could be nothing due : but it Was attached because it was acknowledged to be due. A formal judgment was rendered that Gra-vier should account : a time was fixed for that operation ; and in the mean time, the sale was confirmed by ordering the mortgage which secured the price to be registered.—All this it is true, was done by the intervention of the young lady’s guardian. But she is bound by it since she became of age. The action to account was well brought by the guardian against Gravier. The judgment is binding ; but at any rate, if it be not so, it can only be set aside by shewing lesion or fraud—and that too, in a particular suit, brought for the very purpose, ancf alledging the particulár faults of the act ; not by an incidental question in any other suit. She is therefore bound by the act of the guardian and the judgment of the court.
    But if she were not, she has confirmed them. When these transactions took place she was fifteen years of age—six years afterwards, 1816, offcourse became ofage. During that time, . , , , , ,• , ... however, Gravier had either not complied with orcier 0f the court to render an account, or rendered it unsatisfactorily.—During all that time, the attachment on the price of the batture was in full force—if this plaintiff had, on coming of age, discontinued the suit, or even, perhaps, if she had done nothing, she might have preserved her right to bring an action of lesion or restitution in integrum against the confirmation of the sale, the suit and judgment. But she confirmed them, impliedly, by not discontinuing the suit; expressly by setting it down for trial; and once, at least, (p. 364) after her power to recover this inheritance had arrived here. She therefore made her election and cannot now revoke it.
    I have said that she was bound by the adjudication—perhaps some argument may be required on this head. The universal practice to appoint attornies for absentees, in cases of insolvency and succession, without any enquiry whether they be of age or infants, shews that sucli enquiry would be nugatory ; because if the fact were known, it would produce no change in the measure, unless the plaintiffs think it one to call, as they have done in this suit, the attorney for the absent minor an attorney ad litem—an attorney to defend or prosecute a suit—-and what is the attorney without any such appendage to his name, appointed for the other defendants ?—Precisely the same J thing. If therefore the appointment of an attorney be efficient, in any case, to bind an absentee, it is so in the case of a minor.
    Let the court consider the thousand cases of insolvency alone that have taken place here ; where in the common course of events, the attorney appointed for the creditors must have represented infants, under his general powers—and they will see the danger of suffering them to come forward to rescind all those proceedings, to declare all sales and adjudications under them void.
    Let the plaintiffs look to their own proceedings, and remember that I appear here,'not only for myself, but as attorney appointed on their motion, for three absentees ; of whom one is a lunatic, the other a minor, and the third, by the visitation of God, in perpetual tutelage, being blind.—And then let them chuse whether they will stamp their own proceedings with nullity, in order to destroy those of the Spanish tribunal. Either will be equally fatal to their cQuse. In all events, if the plaintiff be not bound by the Spanish adjudication on account of her then minority, she has a remedy, but clearly not the one she has chosen. A minor when aggrieved by any sentence, must apply to have it revoked by alledging and proving lesion—neither of which has been attempted here or could be done in this action.
    
      The plaintiffs err in supposing that the evidence introduced of my services and expenses, in securing the property, was intended to procure a decree of reimbursement in case of their recovery. As I never thought that a probable event, I was far from taking any measures grounded on the supposition that it would take place. The evidence was introduced to shew the motives of their delay, and reject any equity they might endeavor to set up,—They are willing, however, they say to do justice and make proper compensation.— But what can compensate the days of labor and nights of sleepless anxiety, I have passed in defeating the different attempts by legislative oppression, executive violence, and private litigation to destroy the title which, they now say is theirs ? Oppression, violence and litigation, excited by the very persons or their agents, who now, that I have proved it my private property, unblushingly call it their own ? What can compensate for the mortification of having for ten years (by the prejudices which these very persons have excited) been considered as an aggressor upon public rights, while those w'ho now wish to enjoy the fr uits of my labor, gave themselves the credit of asserting them ? Can they pay me for the fatigues I have undergone ? The dangers I have incurred? The long separation from the friends of early life, eternal as to some who were most dear to me ? Do this J Dó the hundreth part of this ! And take freely a decree' for the land. But in the mean time, do not insult the man you wish to ruin, by an affected love of justice and an offer of pecuniary recompence..
    
      Mazureau, in reply.
    After all that has been said, it will be found that the defence of the purchasers of the batture reduces itself into this : we have bought from a person who had a right to consider himself as the legal owner of the whole estate and was consequently a bona fide possessor of it, The Roman law enacted for the protection of the bona fide possessors of inheritances, are applicable to him ; therefore, no claim can be brought against those who bought from him with warrant}7.
    That this is a misconstruction (no doubt unintentional) of the Roman law on which bears the whole fabric of the defence, can be shewn in a few words, if our first exposition of this question has not already done away the arguments of the defendants.
    The constitution of Adrianus, or senatus con-sultum above quoted, and the laws predicated upon it, were enacted for the protection of the bona fide possessors of inheritances, who have disposed, as such, of the goods of the estate. Who are those whom the law calls by that name ? They are evidently the persons who have a right to consider themselves as heirs : and according to the \3th § of L. 20, tit 3, book 5. of the pandects, and to Rodriquez’s exposition of that law, even all those who have a just title to possess the inheritance, v. g, an heir under a fiduciary bequest. Thus, such an heir, or other just successor, or any one who is entitled to the rightful possession of the inheritance, must be protected as well as the person who believes himself to be the heir. Be it so.—Will the defendants be able to bring J. Gravier within either of those situations ? Evidently not.
    In the first place, we lay it down as a fact that the goods left by B. Gravier, so long as they remained in his estate, never were possessed by J. Gravier at all. They were placed in the custody of the law: the depository general took possession of them immediately after Bertrand’s death, and kept it until by the adjudication they were transfered from the estate to the purchaser. J. Gravier’s possession began then.
    Jno. Gravier, therefore, never possessed as heir. But suppose he had ; then the defendants cannot extricate themselves from this dilemma. Jn. Gravier, as heir, could not be a bona fide possessor of the whole, for he knew that he was not alone. Jn. Gravier, as purchaser under the adjudication, was not a holder of the goods of the in* licritance : for the troods of the inheritance had ceased to be : they were become his own goods.
    The argument of the defendants, unless they have used it in error, is really a mockery ; for it tends to no less than to establish that the goods of the inheritance after their alienation, were still the goods of the inheritance; that after their transformation into a sum of money, they still remained in the estate of Bertrand Gravier, together with their price ; that the estate then consisted both of the price of sale and of the goods themselves ! Will they disclaim any such absurd reasoning ? Then we say, if the goods, which had belonged to the succession of Bertrand Gravier, were no longer in his estate since the adjudication; if the estate, after that, consisted only of the price of sale, in lieu of the goods, how could those* goods be possessed still as the property of the succession. And if they were possessed by J. Gravier by virtue of his purchase, how will you apply to him the laws which were made for the relief of the bona fide possessors of inheritances, who, believing themselves to be heirs, happen to dispose of the property ; and which, so far from protecting the purchasers, expressly provide that, unless the bona fide vendor of the inheritance is exposed to their recourse, the property may be claimed from them. “ Puto posse res vindicaría nisi emptores regressum ad bonee fideipossessoren; 
      fiabent.”—Here the vendor was the judge, who _ J ° sold, of course, without warranty. Jno. Gravierwas purchaser, and the defendants are purchasers from the purchaser : so that if Jn. Gravier could be considered by those laws, there is no reason why the defendants themselves and all other purchasers under them ad infinitum, should not enjoy the same advantage ?
    Such are the laws in which the defendants have pretended to place so much confidence. If they were sincere, they did not understand them, if they were not. . . but we cannot suppose that they misrepresented them intentionally.
    It is hardly necessary to say any thing of that very extraordinary part of the defence, which has been addressed to the feelings of the court, those complaints about hardships, persecutions and such like. In any case, such language is at best very useless before the organs of the law, who have no discretion to exercise ; but in a case of this nature, it ought, above all things, to have been avoided, for fear of the reaction which it might draw forth between those who have labored to strip the real owners of three-fourths of the land in dispute, and the unfortunate heirs who, after having been deprived of their portions in the estate of their brother, come to rescue at least that which has not been involved in the wreck of his succession.
    
      As to the expences and sacrifices, which have , ' , been talked or with bitterness and reproach, though they are also a subject, which this court cannot take into consideration, we beg leave to answer that nothing has evinced on the part of the plaintiffs, any disposition to avail themselves of them without compensation. The plaintiffs ask for justice, and will do justice.
    Henry, on the same side.
    Our reply to the defendants will be short; not that we despise their arguments, for they are very ingenious ; but because they are built on false premises, from beginning to end.
    To commence with the tenderest question, that of the inventory and appraisement, to which the feelings of the defendants have attracted their attention first, what is the basis on which they have erected their fabric ? It is this : the whole tract of land, which Bertrand Gravier owned near the city, was at the time of his death, still a rural estate in one entire body, from the river shore down to the back lines; out of which, to be sure, some parcels have been carved, but without deranging the connection of the whole.—Now. what is the fact ? The whole front of that tract had been laid out into a suburb, and divided into lots, streets and squares ; many of those lots, among others all the front lots but one, had been sold; some were still unsold, and remained in the estate of B. Gravier, not as part of his farm, but as town lots, by their meets and bounds, and numbers conformably to the plan of the suburb, The plantation or farm, the prcedium rusticum, was confined behind the spot divided into proce-día urbana, and had its front on the last street by which their were bound.
    Thus the landed estate of Bertrand Gravier near the city, consisted then, of his farm behind the suburb, of the lots unsold in the suburb, and of the Batture in front of the suburb. The farm was appraised ; the lots were appraised; the bat-ture was not.
    It has been curiously observed, that whole squares in the back part of the suburb were not appropriated separately, and were nevertheless taken in, by J. Gravier as a part of the plantation, This may, indeed well be the fact : and so did 
      J Gravier take the money and the active debts into the bargain, under the adjudication of what had been appraised. We are disposed to acknowledge that J. Gravier took every thing, and would have taken the batture as well as the rest, had he thought of it and could he have done it.
    It is to be lamented that in the same writing, in which the defendants express their contempt for concealment and art, (a sentiment in which we join them most cordially) they should have so far departed from their principles as to mutilate facts to make them square with their arguments — They say that the plantation .was “ estimated by a computation of the number of acres and no part of it excepted but the part sold.” But, “de la qual séquito en el frente lo mas útil, consistiendo lo sobrante en lo mas baxo,” means something more : it is an exception of all the highest part of the land ; in other words of all the front,. Again, they say, that only two lots were appraised separately before the first inventory was closed. Two lots are indeed enough to shew that the adjudication of the plantation, did not include every thing except the lots sold. But the truth is, that there are five parcels appraised separately in the first aPPra’semen{:> and they amount together to about ten lots, where we shall find by and by more information about the contents of the thirteen ar, pents.
    We must here say something of an important discovery, which the defendants have made in the article of the plantation. It is no less than this : cerrándose is written by a C and not by an S, for if it was written by an S, it would be non, sense. That we grant, were it at the peril of our cause. We will never maintain that the lines of a plantation, no, not even the lines of a saw-mili plantation, can saw one another, or any thing else. We are for the C, by all means ; and the gentlemen are very Wellcome to draw from thence any inference, no matter how fatal to our interest.—But we humbly pray the court to consider, that when we ventured to say, that “ qufr van cerrándose” signified that the lines shut, or close, or approach one another as they recede, we gave those words in candor, the sense which we thought they had ; and when we looked at the plan, we were confirmed in our belief that we had understood them right. But suppose we were mistaken, does it disagree with the fact ? Look at the plan, and say.
    The conjectures of the defendants about the situation of the dwelling houses, magazines and other out houses of B. Gravier, and the conse. quences which they draw from them, are very entertaining, and we have no doubt, that they have made a due impression (of that kind) on the minds of the judges. Unfortunately, however, for the defendants, we have on record something more than conjectures to shew that those buildings were situated out of the lines of the thirteen arpents, on lots appraised separately and distinctly from-the plantation. In the first inventory, the court will find three articles, which we here translate from our notes.
    “ Another lot behind the preceding, <£rc. part of which is occupied by fort St. Louis, on which lot is the house inventoried No. 7,”
    ‘4 A parcel of ground, fronting Gravier’s street on one side, and the inclosure of the city, Store street and Camp street on the other, the contents of which may be computed and divided into six portions of lots, rendered useless and embarrassed by a large pond, on whicSf lots are situated a wooden store house, is’c. a brick store house, &⅜. a pidgeon house, another store house, and a stable, which are to be demolished to open the street delineated, and in which stand other buildings, &c. the buildings are those inventoried under Nos. 4, 5, 8, 9, 10, the whole valued at ¡S 1200.
    “ A lot making the corner of Gravier and Camp streets, on which are situated the brick kitchen, fc?c. the wooden house, (s?c. and the pid-
      peon house, £sV. inventoried under Nos 1, 2, 3, valued at S 200, (a pretty good bargain by the Ijyg |\ # 
    
    Now that we have shewn the places where the buildings were, we will proceed to the next point, the nullity of the adjudication.
    The whole train of reasoning of the defendants upon this subject, goes to shew that it is now too late for us to alledge the nullity, or to appeal. But in order to apply to us the rules relied on by them, it must be presupposed that we were parties to the adjudication ; for, if we were not parties we could not appeal. If we were not par» ties we can alledge the nullity at any time.— Now', wTe maintain that we were neither cited nor legally represented, which is the same as not represented at all. The gentlemen have said a great deal to prove that absentees can be represented ; we do not deny that ; but we say, that we were not. Upon,the point we refer the court to our brief. ..
    The defendants further contend, that -we cannot recover,
    
      1. Because we have not proved the allegations contained in our petition ;
    
      2. Because the action could not be brought in its present form against them.
    3. Because, by the circumstances disclosed by the proof in this case, no suit whatever will lie for the recovery of this property.
    4. Because the action is barred by prescription.
    I. Our allegations are, that as heirs of Bertrand Gravier, we own the three fourths of the property in dispute; that Jean Gravier our co-heir has alienated his fourth ; and that we now hold in common with the purchasers.
    If we have proved that we are heirs, that as such we owned the portion of property which we claim, that our co-heir had no right to sell that portion, and that such sale is as no sale ; if we have established that the purchase of the defendants is valid only for the share of Jean Gravier, and that the rest of the property has not ceased to be óurs, have we not sustained our allegations that we hold in common with the defendants ? Holding in common, does not here relate to possession; it signifies that we have a right in common with the defendants, to an undivided property. If we have shewn such a right have we not supported our action ? Can jt sajj that we have alledged one thin?, and ° n proved another ? But suppose we have alledg-ed possession, and had not proved it, what ought to be the consequence ?—This is not a posses-sory action : it is one about the respective titles of the parties. We assert a title to an undivided part; the defendants say that the whole is theirs ; that is the issue to be tried. On our side we have shewn our original title to a part, and relied on the defect of the title of the defendants to the whole. If their title to the whole is really defective, is it not clear that the property belongs to both'vnclividedhj ? The truth is that the defendants are playing upon words.
    II. The defendants say that our action could not be brought in its present form against-them.
    The defendants have set forth two exceptions to this action, which must be kept distinct, for they are very different in their object, the one being a dilatory, the other a peremptory plea.
    By the present, they undertake to show that although we may eventually have a right to sue them for our share in the batture, we could not do it by instituting at once an action of partition against them ; that such an action can be brought only against one who acknowledges that the property is common between him and the plain tiff; that there is no such acknowledgement,— ⅛ ’ that we ought, therefore, to have sued J. Gra-vier first, in order to have the affairs of the com-munitv discussed between him and “ his co-J . heirs before the purchasers can be disquieted by suit. ”
    To that we object in the first place, that a plea of this nature ought not to have been pleaded specially in the answer.
    It is law, not only among us, but probably every where, that dilatory pleas cannot be resorted to after an answer on the merits. Why ? Because by answering On the merits, the defendant is supposed to have waived any exception which might tend to protract a decision on the requisite rights of the parties. Apply that rule to this case, and the soundness of it will be striking: the defendants knowing that a partition of the estate of Bertrand Gravier has taken place, and relying on that partition, assert it as the foundation of their title to the property claimed, and put'it at issue. Could they, at the same time, have said : the action is premature,—first go and settle the business of the estate with your co-heir, proceed to a partition with him, and when the result of that partition is known, come upon us if you have a right ? If they could not say so in such an answer as that which they have made, why shoftld they he permitted to say so ' J 1 J now ?
    Again, we assert that John Gravier has sold to the defendants his share ia the property of which we claim the remainder. What do they answer: It is all ours: J Gravier sold it all to us by virtue of an adjudication, by which you are bound, and by which your rights are settled. Can they now tell us : “you cannot demand any thing of us, until you have settled with J. Gravier ?” Will they be suffered to contradict, now verbally, what they have averred in their pleadings ? We trust they shall not. The plea which they now set up, is incompatible with and in direct opposition to the answer on the merits. It could not co-exist with it on the same paper; far les& can it be listened to at this stage of the cause.
    But should the court be so indulgent as to take notice of that dilatory plea now, then we say that it cannot be supported on any ground. 
    
    The defendants want to send us to discuss the affairs of the community with our co-heir before we disturb them.
    The best way to test the merits of this objec-tíon is to place us where we would be, should the * 5 court think fit to dismiss our present action.— Suppose we are now ready to sue John Gravier: What shall we demand against him ? the nullity of the adjudication? No: for although wfe have repelled that adjudication, when it was opposed to us, it may not suit our disposition, our love of peace, our convenience, perhaps our interest, to embark in so troublesome an enterprise. We are willing to let the adjudication alone, and abide by it, as far as it goes. But the adjudication did not include the Batture, and we must-have our share of it. We demand of John Gra-yier to divide with us : What does he answer? Why, that he has sold his rights, that he is no longer a joint owner with us, and that we may go and claim it from the purchasers. Is that to be the result of our attempt against John Gra-vier ? Then while we are where he would send us, let us have our rights investigated, and justice done to us.
    But, say the defendants, an action like the present does not lie except where the property is acknowledged to be held in community. Why so ? Would it be in the power of any co-proprietor, by denying the community, to defeat the action of the other for a partition, and to com{>el hjm to resort to another action first ? Where would be the justice and the reason of such a rule ? The fact is that such a rule exists no where, but in the imagination of the defendants-,The plain way is'obviously this : Where the defendant denies the community, the plaintiff is bound to prove it. Have we proved that we have a title to three-fourths of this property, and that the title of the defendants is good only for one-fourth? Then we have satisfactorily established that the property belongs to both and of course that it is common between us. What is the consequence ? Why, that a partition may and ought to be decreed.
    But the defendants say that in as much as J, Gravier has sold them the whole of the property in dispute, that is to say, not merely his share, but ours, “ his intervention was absolutely necessary for the purposes of justice.” If J. Gar-nier’s intervention as vender was necessary to the defendants, why did they not call him as guarantee ? This case does not differ from any other case of sale. The purchaser and possessor is sued by him who asserts a title to the property, or to a part of the property in his possession. The vendor had a right to sell it, or he had it not; if the defendant choses to try that without calling the vendor to his aid, he may do so : if he is afraid of the issue, he may summon the vendor to come and defend him.. But the plaintiff ?ares not about that: all he has to do is to show his own . . title and have it compared with the title of the defendant, when he sets up any. Is the case altered here, because after having alledged a title lo a part of the property we pray for a partition ? One of two things must take place. Either wfe^ have supported our title to a part, and defeated the title of the defendants to the whole, and then the partition is but a matter of course ; or we have failed to show a good title in us for a part, and a bad title for the defendants for the whole, and then our claim ought to be dismissed.
    Upon the whole we are convinced, that the more the question is examined, the more it will appear that the difficulty raised by the defendants as to what they call the form of this action, strikes directly at the merits of the case, to wit, at the respective titles put in issue by the petition and answer.
    III. The defendants say that by the circumstances disclosed by the proof in this case, no suit whatever will lie for the recovery of this pro^ nerty.
    This is tfye peremptory exception founded on the Senatus Consultum under which the defendants have endeavored to shelter themselves in vain. The exposition of this question in our brief and the supplement to it, ajre, we think, urn answered, and we trust unanswerable.
    
      JV, They assert that the action is barred by prescription. We believe that more than enough has already been said to show that this plea is not maintainable.
    Upon the sentimental part of the defendant’s argument no reply seems to be necessary. But although we are not disposed to follow their ex. ample in addressing the feelings of the court, we beg leave to rectify some mistatements which have escaped them in the warmth of declamation against concealment and art
    Mr. Pitot was not made the attorney of the plaintiffs until Mr. Desmare substituted the powers to him in April last. The powers of two of the claimants were directed to Mr. Derbigny, the other to Mr. Desmare. They arrived here some time at the end of October or beginning of November, 1817 Mr. Derbigny would not act and requested the heirs to send their powers to somebody else. But before he received, or even could receive, any answer, seeing that the levee was ordered, and that the property was advertised for sale, he thought it indispensable to do something for his constituents, and substituted Mr Desmare to his powers. The suit was immediately begun. No reproach ought to attach to the agents of the plaintiffs, if no disclosure of their intention to claim their rights was made sooner ; for the agents of the plaintiffs were themselves informed of that , 4 . intention no sooner than November, 1817.— Neither are any of the sufferings, sacrifices, and dangers incurred by one of the defendants to be ascribed to them; for one of them was not here at that time, and the other, since his consultation was sent on, never heard one word about the coheirs of J. Gravier and consequently could not, if he had deemed that of any use to the defendants, say any thing of their claim. Finally, the defendants cannot complain of concealment on the part of those who advised the heirs of their eventual rights ; for the defendants knew very well of the existence of those heirs, at least since the suit of J. Gravier against the city, and particularly so, since the judgment of the superior court in that suit, where their title is left untouched on account of their absence.
    
    It is really a delicate subject of reproach, that in which the defendants have indulged : for he who complains that he is not permitted peaceably to enjoy the property of another, can hardly hope to enlist any feeling on his side. If the defend ants wanted to secure their hard contested possession of this land, the first step naturally was to buy it from the owners. None was better acquainted with the true situation of the title of this property than one of the defendants. If, instead of relying on the strength of his art to support a bad purchase, life had laid out some part of hi# expences in procuring a good one, the land would now be his and we would not be reduced to the necessity “ unblushingly to call it or/rs.” But, he “ never thought it a probable event’* that the claim of the plaintiffs could succeed. Is that possible ! If so then let him blame his own delusion, and spare the unmerited abuse which he lavishes upon others.
    
    The Court, when they were prepared to give their opinion, observed that, as some time had elapsed, since the oral argument, if any of the counsel had any thing to add to what had been said, or to the printed arguments, with which the judges had been furnished, he would be listened to.
    Duncan, for the defendants,
    declared that his clients had nothing more at heart, than to hear the judgment of the court.
    The counsel for the plaintiffs said they had nothing more to add.
    
      
       5 D. 3, 13, § 4.
    
    
      
       5 D, 3, 20, § 14. J. D. 3, lams 9, 10, 11, 12 13. Roderig, exp, of same la-ms,p 114—117. Ayara 64, JVb. 3. Faria, prac. 85, JVo. 16, 37, Ib. 86, JVb. 18,24. Política Villadiego, p. 830, JVo. 90. 2, Ihdot,p. 70, § 1, 2, 3. Ib. p. 95, lam 45. Hula Cod. p, 449, l. 20, Ib. p. 506, l. 9. 2d. Ib. Dig. p. 99. 1, 2, 3. lsí. Ib. Dig. p. 406, § 4.1. 13. Ib. p. 414. $ 6. I 20. 424, 17 I 25. 409. 23. 3d Rod. 152. § 17. 1 Feb. 2ch, 9, JO, 11, 12. Agora, p. 1 éh. S.-Aos 20 to.29-
      
    
    
      
      
         Exception to La-fort's testimony.
      
    
    
      
      
         There is, however, no evidence of the fact. What seems probable, is that the addition of two rows of squares in the rear, marked on the plan as not yet divided into lots and not numbered, was nothing- but a project of enlarging the suburb, which had not yet been carried into effect, and existed only on paper. As to the 300 lots contained in the first plan, we find the account of them almost to a fraction.
      Sold by Bertrand Gravier himself 107'
      Appraised in the first inventory 10
      
        
      
      
        To which are to be added, tbe parcels which had been sold previous to the establishment of the suburb. It was, therefore, not disingenuously asserted that all the lots unsold had been appraised sepa-gatel j.
      
    
    
      
       By the inventory appraisement we see that the house, storehouses and other buildings were situate on lots appraised separately from the. plantation, and that the negro cabbins and the garden only were comprehended in it. The consequence is clear, that the front line of the thirteen arpents passed between the house and the garden, s—Where was, exactly, that spot is a matter of no importance. The front line of the 13 arpents passed behind the house .• that is enough. It cannot overleap that boundary.
    
    
      
       The gentlemen now disclaim any ¡nténtíon of insisting upon the subtle distinctions established by the Roman laws in matter of actions. Had they been so candid as to say so from the beginning they would have saved the court, their adverse parlies n,nd themselves, a great deal of Very unnecessary trouble.
    
    
      
       The argument in this case v/as heard in December, 1818; it was not inserted with the cases o!' that term, in order that it might be presented to the reader, at the same time, with the opinion of the court.
    
   Mathews, J,

delivered the opinion of the court.

The plaintiffs and appellants, in this case, after -stating that they and J. Gravier are the only heirs of Bertrand Gravier, deceased, alledge that John has sold to the defendants his undivided fourth part of a certain tract or parcel of land known by the name of the batture, situated in front of the faubourg St. Mary, being a part of the succession of said Bertrand Gravier; and that in consequence of this sale they are owers of said land in common with the defendants. They conclude their petition with a prayer for partition.

The answer of the defendants, who are here appellees, contains a denial in general terms of all the right and title to the property in the plaintiffs ; and two pleas in bar, 1st Res judicata under a decree of a competent tribunal of the Spanish government, rendered in August, 1797, by which they say the land in dispute was adjudicated to John Gravier, from whom they hold, as parcel of the plantation belonging to B, Gravier, deceased, 2d. Prescription to the action :—

In the course of the trial of this cause in the court below% an opinion of the judge was required by the defendants’ counsel, on a question “ whether the present action could be sustained against them,” and being in support of it, the opinion was excepted to. And now against this action, it is contended on their part, that without calling to their aid the subtilties and nominal distinctions found in the Roman civil law on the subject of actions, which have been rejected by modern legislators, it is erroneous)}7 brought, even according to the plain and simple mode of proceeding in all cases, as prescribed by our laws, and particularly by the act of the legislative court-cil regulating the practice of courts in civil cases. By this law it is required that all suits shall be commenced by petition which, amongst other things, must “state the cause of action, and conclude with a prayer for relief adapted to the circumstances of the case.” To suits thus instituted, defendants are bound to answer, which they may do by a denial of the facts stated in the petu tion, or by stating new matter in avoidance thereof, or perhaps by both ; and on such pleadings, cases are submitted for judgment to our courts, both as to law and fact, either with or without the intervention of a jury, at the option of the parties.

The wisdom of these regulations, evidently-tending to simplify the way by which every individual of the community is to obtain justice, and clear it of all technical embarrassments, is obvious not only to lawyers but to all men of common sense.

But, it is true, (as insisted on by the counsel of the defendants) that these rules of practice ought not to receive a construction subversive of necessary distinctions and productive of confusion in things which, from their nature, are wholly separate and distinct. Nor ought they to be so construed as to violate principles held sacred in relation to the necessity of agreement between allegation and proof.

Leaving out of view the names of actions and all over nice distinctions relating to them, let us test the propriety of the present suit by the act above cited, and by the rules of law which hold in abhorrence a multiplicity of actions and require such certainty in legal proceedings as to put an end to litigation. The plaintiffs, as we have already seen, state themselves to be coheirs with J. Gravier, and that they are entitled to three-fourths of the estate of Bertrand Gra-vier ; that the land in question is a part of the succession of their common ancestor; that John has sold to the defendants an undivided fourth part of it, and that in consequence of this sale, they now hold the property in common with said defendants, and conclude with a prayer to have it divided.

If these allegations be true, there can be no doubt of the plaintiffs’ right of action for a partition of property thus held in common by them and the defendants, who admit their quality as heirs, and that the property, a division of which is claimed, \yas once a part of the estate of the eornmon ancestor of John Gravier, under whom they claim title to it, and these plaintiffs. But they say that John acquired a title to all the estate of the deceased by an adjudication of a proper and competent tribunal, and that the entire property in the land, of which a partition is claimed in the present suit, being in him at the time of his sale to them, they do not hold it in common with the plaintiffs, and to this effect they offer in evidence an act of sale for two-thirds of it. This part of the defendants’ answer, is clearly a statement of new facts in avoidance of those stated by the plaintiffs in their petition, on the truth or falsehood of which depends not only the correctness of th,e present action, but the right of the plaintiffs to recover in any form of action ; and in our opinion, these rights may be as well decided on in the manner in which they are presented by the pleadings in this suit, as they could in any other form. By proceeding in this way a multiplicity of actions is avoided, and the rights of the parties will be determined with sufficient certainty to prevent further litigation on the same subject. The judge of the district court was therefore correct in the opinion by which he sustained the action.

The inconsistency of the allegata et probata relied on by the defendants, appears not to be well founded. Two of the principal allegations, in the petition are admitted, viz : the quality of the 1 _ 1 plaintiffs as heirs, and that the property was a part of the estate of B. Gravier, under whom 1 ⅜ # they claim ; and it is shewn that John Gravier, who is co-heir with them has sold two-thirds of it to the defendants, which is certainly evidence sufficient to prove that he has sold one-fourth, on the axiom that the greater must include the less.

We come next, in the order in which it is proposed to consider the case, to that objection which opposes all kind of actions for a recovery of property, either against the vendor or against the present defendants. This peremptory exception or plea in bar is founded on a senatus consultum given on a constitution of the Emperor Adrian, in relation to the difference of situation between possessors of inheritances in good or bad faith From the text and all commentaries on it, Latin, Spanish and French, it is evident that the sole intention of this law, is to protect persons who hold inheritances as owners, with just reasons to believe themselves such, against the claims of heirs who may appear after the property has been sold and alienated by the bona fide possessor ; in which case the heir can recovi r only the price, or so much of it as has enriched the seller.

And it follows as a necessary consequence of the protection given to the possessor in good that when he is bound in warranty to the purchaser, the latter must also be protected against any suit brought by the real heir, otherwise the provisions of the law would become nugatory.

In applying this law to the present case, it is necessary to determine on the good or bad faith of the vendor only for if he held the property now in dispute bon fide, being a part of the inheritance of his brother B. Gravier, under whom the plaintiffs claim rights to it, either as sole heir believing that no other heir existed, or having been adjudged to him by a competent tribunal, it is believed the law above alluded to does protect the defendants against any suit for the recovery of the thing sold. But from the circumstances under which the seller to them held the estate of the deceased, we are of opinion that he cannot be considered as a possessor in good faith of that portion of it which is now claimed by the plaintiffs, either on a belief that he was sole heir, or that it was adjudged to him. If it were really adjudged to him, and the judgment by which he claims the entire succession of his ancestor, be valid and unimpeachable on any ground of nulMty, the defendants are under no necessity of reverting to this exception to the action, founded on the laws favoring honest possessors, for in that event they hold by purchase from one who was both owner and possessor ; and their title is valid.

John Gravier’s want of good faith as a possessor, under a belief that he was sole heir to the brother, is so clearly evinced by his own communication to the Spanish tribunal that other heirs did exist, as to leave no doubt in the minds of the court on this point In testing his faith and honesty, as possessor under the adjudication of the Spanish tribunal, we are brought to a decision of the first question examine., by the counsel of the defendants in his brief of argument, and, as we believe, the most important in the cause. Were the premises sued for included in said adjudication ? This is a question of fact, and as the parties have submitted it to the court alone for decision, we are bound to examine it, and in doing this, reference must be made to the proceeding which took place before the Spanish tribunal, relative to the succession of B. Gravier, particularly to the inventory and appraisement which form the basis of its adjudication. The inquiry to be made is not only what was inventoried, but what was both invento, ied and appraised : the ap-praisement being, in our opinion, the principal fonndation of the judgment; the equivalent for which, one of the heirs was to become owner of the estate of the deceased on condition of paying *^e^ts and dividing any sum that might re? main among his heirs.

The inventory is minute to an extreme. After describing the moveable property of the succes- , , . { . sion, the persons engaged in making it proceed to set down the real estate, amongst which “ are placed the lands of the plantation, the extent of which cannot be immediately ascertained, because many lots have been sold ; but N. Gravier informed that its limits ran as far as the bayou, according to the titles of the same. ” There is evidently no description by which the quantity, situation or limits of the plantation can be ascertained. But when it became necessary that the appraisers should fix a value on this real estate of the deceased, we find a description which can hardly be mistaken, viz :

About thirteen arpents of land of which the plantation consists, including the garden, from which land the most useful part has been cut off on the front; the remainder being the lowest land, inclosed with bad fences, etc.” The front had been taken off by the deceased, or some pri- or owner; that which constituted it, as appraised, was the rear of the original plantation which ran to the river, and is described as the lowest land, such as is generally found at a distance from the river. Is it possible, under such a description as this, confining the land of the planta . lion appraised to the rear of the original tract, 1 . b ’ to the lowest land, inclosed by bad fences, to leave the fences to pass the front already taken on, and to include a parcel of land, which, from its situation on the river, may be considered as the highest of the original tract? To include in it the batture, by this description, is thought to be impossible, on any fair construction of its expressions. It was, at the time of the appraisement, a spot of ground wholly separated and distinct from the plantation, as appraised, and did not pass with it by the adjudication of the Spanish tribunal. And it is admitted that it was not adjudged under any other name. Being of opinion that John Gravier acquired no title, to any part of his brother’s succession, under the decree, by which it is adjudged to him at its appraised value, exceot that which was actually appraised, and being also of opinion that the bat-ture never was inventoried or appraised, it is thought useless to enter into any lengthy discussion, on those parts of the defence, which insist that all the succession passed by the judgment of the Spanish tribunal, because the heir to whom it was adjudged was laid under an obligation to pay the debts of the deceased, and that the land in dispute passed as a part of the plantation, because many lots in the back part of the faubourg were transferred as a part of it. As to the first, jj. -1S suffrc;ent t0 observe, that, as J. Gravier took ⅜ the estate with the benefit of an inventory and appraisement, he could not, under the decree, be bound to pay debts beyond the amount of the appraisement.

Whether he has a right to hold any lot which Avas separated, by known and established lines and boundaries, from the remainder of the plan* tation, might be forcibly questioned. But it appears clearly from the inventory and appraisement, that many were distinctly inventoried and appraised ; which shews that it was not believed or understood by the judicial officers of the Spanish government, who acted in the case, that all the lots in the faubourg, the right to which remained in B. Gravier, at the time of his death, would pass by their decree under the description of the plantation. See the Spanish record, fols. 157, 158, 159, 160 and 187.

The last means of defence, contained in the anstver of the defendants, is the prescription to the action : and, on this ground, it is contended that the present suit can be prescribed against by a lapse of ten or twenty years ; ten when the parties are present, and twenty Avhen absent. It must be conceded that an action for partition, speaking of it in general terms, can be prescribed against on’y by a lapse of thirty years, and not even by this or any other much greater length of time when the partners or co-heirs possess in ¡_ 1 common an inheritance or property, See the Recopilacion, Febrero, Ayora and other authorities cited on this point.

The prescription of ten and twenty years, above alluded to, takes place in relation to inheritances on a presumption that a partition has been made between co-heirs of full age, who possess and live separate during those periods ; but this presumption always yields to contrary proof, and, in the present case, it appears to us to be abundantly shewn that the property, of which a partition is now claimed, was never acted upon by any tribunal, either by way of partition amongst the heirs of the deceased or adjudication to any one en masse. The action of the plaintiffs is therefore not barred by prescription. But (as if opposition was never to cease) it is said that although their action is not barred by prescription, yet the right of one of them, Jeanne Bordier, is barred by a judgment rendered in a former suit—commenced and prosecuted on her behalf, at the instance of her guardian, to compel J. Gravier to account to her for her portion of ihe succession, of B. Gravier, their common ancestor. This suit proceeded to a judgment against the defendant to account; and the purchaser of the bat-ture, being made a party, was enjoined from pay, jpg over the price to the seller, and this circumstance is now insisted on as a confirmation of the . . , sale and a renunciation on the part of the minor to the thing sold, having elected to take the price in lieu thereof. After the judgment to account and the sequestration of the price in the hands of the purchaser, the suit was discontinued by leave of the court in which it was brought, before any account was rendered by the defendant. We are of opinion that these proceedings, thus carried on by the guardian of the minor, do not affect her right of action in the present case. First—because nothing has been finally determined in the former suit: and secondly—because her guardian had no right to choose for her between the thing and its price, or to enter into any transaction or compromise about her estate, without judicial authority.

Several exceptions were taken in the course of the trial in the district court, by the counsel for the plaintiff, to opinions of the judge relating to testimony offered to prove that the batture was not included in the inventory and appraisement. A witness, offered on the part of the defendants to prove that it was actually appraised, was rejected by the judge, and a bill of exceptions filed in consequence of said question.— Without examining these bill of exceptions in detail, suffice it to observe that we believe the judge of the court below was correet in rejecting oral testi mony as to what was intended by the written documents, contained in the mortuaria of B, Gravier, which alone we have taken into consideration in deciding on these facts. Oral ° . evidence was well received on the subject of actual occupancy, but not in relation to title.

On the best examination we have been able to give rhis case, we feel bound to declare it as our opinion that the judgment of the court below is erroneous, and must therefore be reversed, avoided and annulled, which is hereby ordered And proceeding here to give such judgment as ought there to have been given, it is further ordered, adjudged and decreed, that a partition of the land in dispute do take place, according to the rules and regulations of law in such cases made and provided ; reserving to the defendants, any right which they may have to be remunerated for expences laid out in reclaiming and improving said property. And it is further ordered and decreed, that the cause be sent back to the district court, to cause a partition to be made as herein decreed, by allotting to each of the plaintiffs one fourth part value of said land, being three-fourths, and the remainder to the defendants.

On the day after the judgment was pronounced. Duncan, for the defendants, read a petition, praying that the judgment might be declared null and void, on the ground of its having been pro- ° nounced more than fifteen days after the close ox argument. He relied on the fourth section Df the act of 1813 ch. 47, which provides that “in no case shall they (the supreme court) delay more than fifteen days the pronouncing of their judgments. ” 2 Martin's Digest, 144, n. 7.

The Court refused to receive the petition, stating that the judgment had not yet passed in rem judicatam and the case might be reheard, if good reasons were shewn, on the application of either party, under the general rule of March term, 1814, 3 Martin, 280. That it was doubtful, whether the recourse of nullity against final judgments of any court, as it prevailed, under the Spanish government, before the court rendering the judgment, was still a part of the judiciary system of the state—that, admitting that it was, such a recourse was not allowed, in Spain, in regard to judgments of courts of dernier resort. Meeker's assignees vs. Williamson & al. syndics, 4 Martin, 625, Williamson & al vs. their creditors, 5 id. 618, Recopilacion, 4, 17, 4 —That if this recourse still existed, it was to be sought in a distinct suit, the adverse party being served with a copy of the petition and cited That the court had often found it impossible to come to a determination, till after a fortnight from the close of the argument—-that, in a particular case, in the western district, Seville vs. Chretien, the court, being composed of two judges on:y, the junior one having been of counsel in it, found it • ° . impossible to come to a determination without consulting authorities not within their reach at Opelousas, and the judgment was accordingly postponed till the following year—that, in such cases, the court thought it their bcunden duty to pronounce, as soon as possible, after they had formed an opinion—that the opportunity was, however, always afforded to counsel who imagined that their arguments might have been forgotten, to be heard—an opportunity which, in this case, was offered, and of which the counsel thought it needless to avail themselves. 
      
       Derbigny, J. did not join in this opinion, having been consulted in the case, while at the bfcr.
     
      
       The argument in court began on the 1st and was concluded on the 15ih of December. The judges took no notes, being informed that each party would furnish a written argument, containing a note of all the authorities cited. The plaintiffs’ counsel, some time after delivered a printed argument to the judges and to the defendants’ counsel, who asked time to have an argument or answer prepared and printed. This was not completed till after the Christmas and New Y. ar holidays, and the argument as soon as received was communicated to the plaintiffs’ counsel, who returned it about the middle of January and the judgment of the court was pronounced on the 3d of Fcbruarj', the court, composed of two judges only, not having been able to agree, till then. Mr. Livingston, on behalf of himself and his co-defendants, presented a petition to the Legislature, then in session, complaining of the refusal of the supreme court “to listen to the argument and authorities, by which they could have shewn that the judgment was void, or to receive their pe-petition,” and praying that some legislative provision might be made for the relief of die petitioners, &c. The House of Representatives rejected the petition.
     