
    No. 11,480.
    S. W. Rawlins vs. D. M. Giddens et al.
    Where, under the advice of a family meeting, duly held and homologated, certain immovable property of the minor, alleged to belong to him by the tutor, is exchanged for other property of the same kind, the judgment of the court author - • izing and approving the exchange is conclusive between the tutor and the minor. The property exchanged for the minor’s property becomes their property irrevocably as against the tutor and those claiming through or by him, and including creditors whose claims originated after the judgment.
    In a settlement with the minor, personal property which has become old and worn out, and with the proceeds of the sale of the property it is replaced by other property, the latter belongs to the minor.
    When the tutor inflates his credits and pays no money to the minor, and on the settlement turns over property only which belongs to the minor, the creditor of the tutor, for the debt due by the tutor to the minor, has no right to subjec.t the minor’s property thus turned over to the satisfaction of his debt. The creditor, therefore, has no interest in insisting upon an exact statement of the tutor’s accounts in such a case.
    When the tutor has had the use of the minor’s plantation for along period of years, and pays no rent, but charges himself with it, the property, upon which the minor has a lessor’s privilege, will be subjected to the payment of said rent.
    On Application por Rehearing.
    1. The separate creditor of either spouse has the right, after the dissolution of the community, to have the community liquidated, and to subject according to law to the satisfaction of his claim the interest of his debtor thus ascertained.
    2. The separate creditor of the husband can not, after the community has terminated by the death of the wife and the rights of the parties have become fixed by that fact, deal with an undivided interest in any specific piece of property, if it belonged to the community,*as if the husband had the absolute ownership of one undivided half thereof. He has not the right to seize directly an undivided interest in a specific piece of property, sell it, and apply the proceeds of the sale to the payment of his debt.
    APPEAL from the Ninth Judicial District Oourt, Parish of Red River. Hall, J.
    
    
      J. F. Pierson Attorney for Defendants and Appellants:
    The creditor can not be injured by a transfer or sale from one of his debtors in solido to another debtor in solido, for the same debt; and in no case can the creditor maintain the revocatory action to annul a sale, unless he be actually injured thereby. Seixas vs. Citizens Bank, 38 An. 429.
    Where plaintiff in the revocatory action sues to set aside an account and settlement by a tutor with his wards at the -termination of the tutorship, as a sale transfer and giving in payment by the tutor to his wards, and the wards in answer to such suit disclaim the account and settlement with them, as any title to them to the property mentioned, and disclaim any intention to acquire or hold the property under such alleged sale transfer, or giving in payment, but in reconvention set up their title by inheritance from an entirely different source, and upon which the case goes to trial, such an issue presents no feature of the revocatory action or action of simulation, and becomes an action petitory in its nature and character, involving only the ownership of such property under such adverse title so set up by the wards. 39 An. 635.
    In such ease the burden is upon the ward to establish ownership under such adverse title, and his disclaimer under the act sought to be revoked or annulled debars him from any claim to the property, as against the suing creditor, under the act assailed; hence, no grounds remain in the case for the revocatory action or action of simulation.
    The creditor has the legal right and capacity to stand in judgment as against third persons for property claimed by him to belong to his debtor. Spencer vs. Goodman, 38 An. 898.
    In a suit to make out title to his debtor, the rights and privileges of the creditor are precisely those of the debtor himself. Nouvet vs. Vitry, 15 An. 653.
    In cases tried by a jury the court must render judgment pursuant to the verdict of the jury. O. P. 541; 4 An. 6; 6 An. 727; 17 An. 167; 33 An. 583.
    The court can grant no relief, nor can it insert in the judgment any clause not authorized by the verdict, nor can the court condemn the defendant in the revocatory action when the verdict does not authorize such judgment, and when the case was not tried upon such issue. O. O. 1977; 33 An. 1086; 34 An. 1214.
    A final judgment of the probate court, decreeing the property in the hands of the tutor to belong to the minors in his charge, is a judgment settling the status of such property in his hands, and as such is conclusive against the tutor, and all others subsequently claiming under or through the tutor. 26 An. 112.
    Such judgment is the highest evidence of the fact that the property belongs to such minors, and can not be impeached. Grevanburg vs. Bradford, 44 An. 422.
    
      No other evidence can afford strength to the presumption of truth it creates, and no argument can detract from its legal efficacy. Campbell, J;, Jester vs. Hewitt, 22 How. 364-376.
    A member of a family, and all claiming under him, are estopped from claiming land recognized in the proceedings as belonging to the minor. 11 An. 502; 6 An. 722; 40 An. 189.
    Successors, or ay ant cause of parties to the original suit, are considered as parties themselves when their titles have been acquired since — aliter, if before. 3 An. 320; 12 An. 873; 4 Rob. 23; 7 An. 445; 9 An. 150.
    A father can make a purchase in his minor child’s name, but not to the detriment of existing creditors. Subsequent creditors can not contest the purchase. Hopkins vs. Buck, 5 An. 487; 5 N. S. 634; 5 L. 126; 2 An. 959.
    Where a party has recognized the title of another to property and has thus estopped himself from questioning the validity of such title, a party holding under him the same property, as vendee, must be held to a recognition of that title and must show that he has acquired the same or fail in maintaining his right to it. Giranlt vs. Zunts, 15 An. 685; 34 An. 634.
    
      J. C. Egan Attorney for Plaintiff and Appellee.
    Same Counsel and J. D. Wilkinson for a Rehearing:
    The opinion of the court rendered herein maintaining the plea of res adjudicata was in error as to the true facts of the case. To form the basis for such plea there must be a cause of action submitted to the court for its consideration; this cause of action must be pertinent to the issue, and must be the identical question before the court by parties acting in the same capacity. Collens vs. Jumel, 30 An. 861; West vs. Creditors, 3 An. 529; Cook vs. Doremus, 10 An. 679. In other words the decision must settle some question in dispute between the parties acting in the same capacity. Such is not the facts in this case.
    In the judgment pleaded as res judicata the question of the proportion of the property owned by D. M. Giddens and the proportion owned by the minors was not submitted to the court, and it did not pass and could not pass on such question, for no such issue was raised, nor did D. M. Giddens act in his individual capacity, but as tutor.
    Again, the judgment of the probate court did not decree the minors the owners of the whole property received in exchange, nor did it decree in what proportions they held and owned said property.
    This act of exchange admittedly includes property belonging to D. M. Giddens, and the act declares that said Sprowls place is transferred to D. M. Giddens in his “ own right and as tutor." “ In his own right ” certainly means that part of the property received belonged to. D. M. Giddens, and an investigation of the source of title shows that D. M. Giddens is or was the owner of one-half of the property given in exchange.
    Now this act of exchange as made was homologated by the judgment pleaded in bar — a judgment that was rendered more than two years after the exchange was made, and which purported to place a judicial sanction on a title as it then stood and no more. The judgment is as follows:
    “In the matter of the tutorship of the minors of D. M, Giddens. Petition for homologation, etc. No. 68. In Red River parish, La. Probate docket.
    “ In this cause by reason of the law and the evidence it is ordered, adjudged and decreed that the proceedings and deliberations of the family meeting as convoked and holden on the ninth day of December, 1875, in the matter of the minors of D. M. Giddens, before W. P. Peck, recorder and ex-officio notary public in and for said parish and State, and in which it is advised and recommended that it ‘ is to the evident interest and advantage of said minors that said exchange be made upon the terms that one place — the Sprowls place, to-wit — be given in exchange for the other — the Armistead place, to-wit — on the condition that the mortgage and debt now held by Mrs. B. W. Lisso be assumed by Mr. J. H. Beaird, the party proposing the exchange, and the said father and tutor released therefrom, said minors to hold and reserve any and all legal liens and rights they may have had in the Giddens-Armistead place, the same on the Sprowls place, be homologated and confirmed, and made the final judgment of the court upon the ground and for the reason that said exchange was a legal and valid contract and was advantageous to the minors.’ It is further ordered, adjudged and decreed that the contract of exchange as executed and carried into effect, and bearing date December 20, 1875, and same being notarial in form, be homologated and confirmed, and declared to be binding, of full force and effect against and between said minors and J. H. Beaird, and valid as a final and mutual title to each as to the places respectively conveyed.”
    * * sf; * * *
    It will be seen that this judgment declares “ said minors to hold and reserve any and all legal liens and rights in the Giddens-Armistead place, the same on the Sprowls place.”
    
    What right did they have in the Giddens-Sprowls place? The judgment does not declare, and in order to ascertain this fact recourse must be had to the source of title to this property. If D. M. Giddens had no ownership of any part of the property received in exchange, why does the judgment declare that the minors’ legal liens should be as operative on the one as on the other? If he was not the owner of any part of the property received, on what was the minors’ legal lien to operate? The minors could not have a legal lien on their own property, and some part of it must have belonged to D. M. Giddens.
    The judgment can not be construed by itself in determining this plea. It was a judgment homologating a written title of two years’ standing and the deed homologated becomes and forms part of the judgment rendered.
    The act. of exchange transfers the property to D. M. Giddens in his own right and as tutor, and the judgment of the probate court gives judicial sanction to the transfer of the minor’s interest. The question of the transfer of D. M. Giddens’ interest was not before the court, and no judgment was needed to authorize its transfer.
    Construeing the judgment and the act of exchange together, the judgment only gives the minors an interest in common with D. M. Giddens in the property received. It created no new rights; it did not purport to destroy the title of Giddens and vest the same in the minors. It homologated the act of exchange as it then stood, which places the property in D. M. Giddens in his own right and as tutor.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff instituted this suit against defendant D. M. Giddens for the sum of one thousand seven hundred and eight and 68-100 dollars, evidenced by a promissory note, dated May 14, 1892.

In the suit he made also defendants the two sons of plaintiff, Robert A. and Albe'rt S. Giddens.

“Petitioner further alleges that said Albert Giddens, Robert Giddens and their father, D. M. Giddens have entered into a pretended settlement and transfer of property on the 28th of December, 1892, and filed of record that day in the clerk’s office. Petitioner alleges that said pretended transfer and settlement and giving in payment is a fraudulent simulati.n, and that D. M. Giddens was not indebted to them in any sum after accounting for the improvements on said property, and for their raising, education and support. Petitioner alleges that all the property pretended to be transferred by above conveyance is neither the original property left by the succession of the mother of Albert S. and Robert A. Giddens, nor is it the product or increase of said succession property. Petitioner further alleges that if said D. M. Giddens was due them anything, that they had no mortgage or privilege on any of his property, nor was there any mortgage or privilege on any of the personal property described in the act of conveyance, and the transfer of the property for an indebtedness, if any existed, was null and void, because said Giddens was insolvent, and the said parties knew of his insolvency. Plaintiff alleges injury by this settlement and insolvency of the father, D. M. Giddens, and the same be avoided and annulled.”

For participating in these alleged illegal acts and assisting their father in illegally disposing of his cotton, judgment is prayed for in solido against all the defendants. All the property embraced in the settlement is asked to be made subject to plain iff’s debt.

The defendant’s two sons deny that they held said property by virtue of said settlement but by inheritance from their mother.

The case was tried by a jury, who returned a verdict for plaintiff against D. M. Giddens for full amount claimed on account, of five hundred and eighty dollars, and they also in the verdict declared D. M. Giddens to be the owner of one-third interest in the Sprowl place, and that said one-third interest should be subjected to the payment of plaintiff’s demand. A judgment was rendered on this verdict which departed in some respects from it. Defendants complain of this, but it will be unnecessary to comment on it, for the reason that the judgment rendered will be amended, dismissing the demand of plaintiff against defendant's sons, and releasing the property subjected to the payment of the judgment rendered.

The sons, R. A. and A. S. Giddens, appealed from the judgment.

The record is very large and encumbered with m-ch useless matter. There was no necessity of introducing any evidence of title in the mi ors prior to the judgment hereinafter noticed which fixed the status of the property as theirs — i. e., the lands of their tutor, their father.

The mother of the two defendants, R. A. and A. S. Giddens, died. Her succession effects were inventoried and the father qualified as tutor. During the tutorship, seventeen years before the execution of the note sued on, in the interest of the minors, it became necessary to exchange the immovable property, which the tutor considered as their property, for certain other immovable property. A family meeting was convened, the proceedings regularly conducted, and a decree was rendered homologating the proceedings and approving of the exchange.

The decree concludes as follows: “ It is further ordered, adjudged and decreed that the contract of exchange, as executed and < arried into effect, and bearing date December 25, 1875, and same being notarial in form, be homologated and confirmed and declared to be binding and of full force and effect against and between said minors and J. H. Beaird, and valid as a mutual and final title to each as to the places respectively conveyed, and that the costs be taxed against D. M. Giddens, tutor, at whose instance this family meeting was convened. Done, read and signed in open court, on this 21st April, 1877.

“ A. Ben. Broughton, Parish Judge.”

This judgement is final, conclusive and irrevocable between the tutor and the minors. All the property received in exchange was the property of the minors. It is too late to inquire whether some of the property given in exchange belonged to the tutor. It passed from him, so far as creditors of the judgment debtor are concerned, whose debts originated after the decree. 44 An. 422.

A portion of the immovable property embraced within this decree, it is claimed by plaintiffs, was owned at the time by D. M. Giddens, the tutor. ' But this is questioned, and the testimony of the tutor is that he took the title in his own name, but received the money to pay the price on account of the minors, from their grandmother.

One of the minors became of age and the other was emancipated during the tutorship. They had a right to demand an account from their tutor, and the delivery to them of property held for them.

The fact of the insolvency of the tutor is no evidence by itself that they colluded with him. The fact of insolvency alone would, or ought to, induce action on their part to protect their rights. That one of the minors was uneasy as to his rights some time before the final settlement, 28th December, 1892, is a fact established by the testimony.

Both, however, concluded to let their father manage the property for a while, in order to satisfactorily meet his obligations. He was unable to do so, and the settlement of 28th December, 1892, was the result. The evidence fails to establish any collusion between the tutor and the minors who had become of age to defraud the creditors of the tutor, or that they had been employed by him in diverting cotton from its proper destination to the furnisher of supplies.

D. M. Giddens’ testimony as to the amount of cattle, hogs, horses, mules, etc., delivered to the minors is unaffected by plaintiff’s evidence. They are in excess in some items of the amount in the inventory of the mother’s succession. But D. M. Giddens shows that this excess was from natural increase, from selling old and purchasing fresh stock. In other words, the whole increase was produced from the minors’ property administered by him. They are entitled to it. 31 An. 359; 42 An. 162.

Some of the items in the settlement are of articles returned in kind, and others of articles returned in kind for like articles consumed by the tutor.

In the settlement between the tutor and his wards there are alleged overcharges for rent, for the support and education of the minors, and a failure to charge for- improvements placed on the minors’ property. The plaintiff for these reasons charges that the tutor was not indebted to them. It may be true that the minors had no money demand against him in consequence of the statement of the account, but this is a matter between the tutor and the minors, who had attained the age of majority and were capable of remitting the credits not mentioned in the account, and of accepting the overcharges for rent and. support. But as the tutor only turned over to them the property of which they were the owners, the plaintiff was in no way injured by the settlement and has no cause to complain.

The tutor can not so manage and administer the tutorship as to bring the minors in debt to him, and so burden their property as to divest title in them and vest it in h.imself.

In the settlement made with his wards the tutor delivered to them property to which they were entitled and of which they were the owners.

He charges himself with rent for the entire period of the tutorship, but the settlement does not show, that any rent was paid to the minors.

On the account or settlement there are two jennets and one colt, one mower and rake, and one lot cotton seed, valued at three hundred and seventy-five dollars.

It is admitted that the minors had no title to this property.

The tutor owed for rent. It was not offset by improvements sufficient to pay the same. They had a privilege on this property for the payment of the rent. They could have seized and sold it.

The plaintiff was not, therefore, injured by the delivery to the minors of property which was subject to their lessor’s privilege, and from which there could be no surplus to pay any part of plaintiff’s debt.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to reverse that part of it which affects the title of the defendants, A. S. and Robert A. Giddens, to any of the property comprised in the settlement made with their tutor, D. M. Giddens, on 28th December, 1892, and which annuls and sets aside said settlement, and that part of the decree which invests ownership in D. M. Giddens of one-third interest in the Sprowl plantation, and the said A. S. and Robert A. Giddens are declared to be the lawful owners of all said property comprised and embraced in said settlement, and plaintiff’s demand against them be rejected. In other respects judgment affirmed, plaintiff to pay costs of appeal.

Mr. Justice Watkins recuses himself, having been of counsel in this case.

On Application for a Rehearing.

Nicholls, O. J.

The community between D. M. Giddens and his wife, Mary J. Armi-tead, has never been finally settled and liquidated, and the rights of the spouses fixed and determined. The separate creditor of either spouse has the right after the dissolution of the community to have the community liquidated and to subject according to law, to the satisfaction of his claim, the interest of his debtor thus ascertained. The plaintiff does not pretend to be a creditor of the community. If he be a creditor of Giddens it is for a claim which originated after the community had terminated, and the rights of parties had become fixed by the death of the wife. Even if the title to the property or part of the property involved in this litigation, fell into the community by reason of the time at which it was purchased, this creditor can not deal with an undivided one-half interest in any specific piece of property, as if the husband had the absolute ownership of one undivided one-half interest therein, proceed against it by direct seizure, sell it and apply the proceeds of the sale to the payment of his debt.

He has a remedy, but the remedy is not by direct seizure of an un - divided interest in a specific piece of property. We think the interest of justice will be best subserved by setting aside the judgment heretofore rendered by us in this case, and said judgment is accordingly set aside, and it is now ordered, adjudged and dereed, the law and the evidence supporting this judgment and decree, that so much of the verdict of the jury in this case as “finds that D. M. Giddens owns one-third interest in the Sprowl place, excluding all movable property, and subjects said one-third interest to the payment of this judgment,” and so muth of the judgment of the District Oourt (based on that portion of the verdict) which decrees “that D. M. Giddens is one-third owner on the Sprowl plantation, and that the same be subject to the payment of plaintiff’s claim, interests and costs,” be and the same is hereby annulled, avoided and reversed. It is further ordered, adjudged and decreed that the portion of the judgment appealed from which decrees “ that the transfer and settlement from D. M. Giddens to Albert A. and Robert S. Giddens, of date December 28, 1892, be avoided, annulled and set aside in so far as plaintiff’s claim is affected by same ” be and the same is hereby annulled, avoided and reversed and the case is remanded to the District Oourt for further proceedings according to law, the right of plaintiff being expressly reserved by proper proceedings to force a final settlement and liquidation of the community between D. M. Giddens and his deceased wife, Mary J. Armistead, and to subject to satisfaction, according to law, for his judgment, the interest of his debtor thus ascertained.

Rehearing refused.

Watkins, J. recused.  