
    (36 South. 311.)
    No. 14,935.
    LYLES et al. v. KNOLL.
    
    (Feb. 29, 1904.)
    DESCENT AND DISTRIBUTION — SAXE OE INTEREST-RIGHTS OE HEIRS — RESCISSION.
    1. Heirs who seek to recover back their right as heirs sold by them at private sale, because of asserted irregularity in the sale, should not seek to avoid the sale and sue without reference to the sale, nor should they seek to profit by the irregularity by withholding the price.
    Although it has been decided that the price may be held compensated by the fruits, it has never been decided in an action of asserted nullity of judicial proceedings that those who owned the right disposed of by them can have their own sale set aside without offering to return the amount they received.
    2. If the heirs were in error about the insolvency of the succession, and sold the right in error, there should be an action brought averring error or fraud, if there was either.
    3. The succession owed debts. In order to settle them, it was deemed proper by the purchaser from the heirs to sell the property at private sale.'
    (Syllabus by the Court.)
    Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.
    Action by Charner W. Lyles and others against Chester F. Knoll. Judgment for defendant, and plaintiffs appeal.
    Reversed.
    Adolph Yalery Coco and Clifton Ashton Smith, for appellants. Joseph Clifton Cappel, for appellee.
    
      
       Rehearing denied April 11, 1904.
    
   BREAUX, J.

Plaintiffs seek, in their capacity of heirs of the late John M. Lyles, to have decreed null the sale of the property of his succession.

The grounds urged for nullity are that the property was lumped together and sold, and thereby bidders could not bid thereon, and in consequence defendant, by whom the property was bought, acquired it at a very low figure.

Plaintiffs charge that defendant was the administrator of the succession of Chester F. Knoll, and in consequence violated a prohibitory law in becoming the adjudieatee of it at the sale, which prohibits an administrator to buy property of the succession he administers.

They claim ail accounting of defendant, and ask to be placed in possession of the property.

Defendant says in answer that he has filed, a final account of his administration, and that it has been approved by a judgment, and avers that he no longer can be sued as an administrator.

lie sets up further that the property of' the succession was partnership property which he held in indivisión with the late Chester F. Lyles, and that it was adjudicated to him as a partner. He pleads the prescription of five years.

1-Ie further in his defense avers that the succession was insolvent; that he paid the debts, as he desired to protect the memory of his deceased partner and friend, and furthermore paid in cash the sum of $2,000 to the heirs, and in consideration of this amount the heirs sold and transferred to him, by notarial act of sale, all their rights in and to the succession.

At the threshold of the discussion, it suggests itself that heirs cannot treat as an absolute nullity a notarial act to which they were parties, and which on its face shows that they received an amount in consideration of the sale of their interest in a succession to a person named in the deed as the purchaser.

Nor can they ignore the fact that they received an amount which' it is incumbent upon them to return before seeking to obtain possession of the property which this title conveyed.

There is another well-known rule in matters of succession which stands in the way of plaintiffs recovering judgment in this suit, and that is that an heir must bring a direct action to set aside the proceedings after the final account, and after a judgment has been rendered homologating an administrator’s account and discharging him from his trust as administrator.

With reference to the sale by plaintiffs to defendant to which we have adverted above, a number of the heirs have signed, others gave procurations more or less in form to sign for them, and one branch of these heirs were minors, and their tutor received the portion of the price to which they were entitled under the sale. None of these heirs denies having received the amount due him. They are silent upon the subject, and, so far as the record discloses, they show every disposition to sue and recover the property without offering to return the amount received. This cannot be done. In order to rescind an act to which he was a party, plaintiff should place those with whom he contracted in the position he (the vendee) was prior to the contract. 4

Plaintiffs are without right to hold out to the defendant that they will recover enough of the property in the suit to enable him to recoup the price he has paid, and that they will recover something over and above this amount for themselves.

They must begin by tendering to defendant the amount he had paid as the price.

Even minors must make restitution to the extent that they have been benefited. Heirs of Gormley v. Palmes, 13 La. Ann. 213.

A plaintiff must return the amount which inured to his benefit. Elliott v. Labarre, 2 La. 344.

As to an onerous donation, it has been held that the donor seeking to set it aside should make restitution. Jouet v. Mortimer, 29- La. Ann. 206.

Moreover, the burden of pleading is with plaintiff.

The purpose of plaintiff is to set aside the act for some irregularity or asserted illegality. It is not so null on its face as to be considered a nullity. The remedy in a case of that character is by a direct action, and not by replication. The following was decided in Baron v. Baum, Adm’r, 44 La. Ann. 295, 10 South. 766, as indicated by the extract from the following syllabus:

“Parties claiming to be sole heirs of a deceased have no right to demand an account of the administrator of the succession, although they attack a judgment homologating an account, where it appears that the party sued for the account has been discharged as' administrator, and the order discharging him is not assailed.”

The same rule is, in substance, laid down in other decisions. Duson v. Dupré et al., 33 La. Ann. 1134; Succession of Thibodeaux, 38 La. Ann. 716; Augustin v. Avila, 29 La. Ann. 837.

For reasons assigned, the judgment appealed from is avoided, annulled, and reversed, and plaintiffs’ action is dismissed as in case of nonsuit. Costs to be paid by plaintiffs in the district court, and by defendant and appellee on appeal.  