
    No. 11,380.
    Mary Ann Witlow vs. Mrs. Louisa Suarez.
    An agreement of settlement or compromise of claims against a succession, pleaded and maintained as a bar against a suit on such claims, can not be afterward used as a defence against the suit on the agreement itself.
    PPEAL from the Civil District Court, Parish of Orleans. . Monroe, J.
    
    
      
      <.W.' S. Benedict and H. G. Gage for Plaintiff and Appellee:
    ■‘'After' pleading a compromise in bar of a suit one can not be per- ’ '' 'mitted to repudiate the compromise because the- suit was 1' ‘ ' brought.
    
      QUi sentlt cominodum, sentire debet et onus.
    
    
      A. L. Tissot Attorney,for Defendant and Appellant:
    . 'An agreement relating to certain lawsuits can not be repudiated and - • violated by-its- intended beneficiary, .and thereafter recovered • ■ ' upon. i.......'
   The opinion of the court was delivered by

“Miller; J.'

The plaintiff sues to enforce-an agreement by which •defendant, universal legatee of 'Joseph Llula, agreed, as soon as -th'e litigation! then pending in the succession .of the deceased was -ended, to convey to plaintiff certain real estate.- The-defence was 1 res -judicata, based -on the judgment ’in; the suit between the same - parties,- decided, by this court in 44 An. 61, an estoppel arising, i the answer alleges, from plaintiff’s repudiation of the agreement sued on, and the repudiation is charged to. consist in plaintiff’s in- . stitution of the suit.reported in 44 An. On these exceptions the suit i was tried, and defendant appeals from the judgment in favor of . -plaintiff. .......

It appears that the plaintiff asserted the right to one-half of the property left by Llula; that with the. view . of preventing litigation, and for other causes as we gather from defendant’s brief-, plaintiff and defendant entered into the agreement on which plaintiff sues, for the conveyance to plaintiff of certain property. It is stated in defendant’s brief this was not an agreement but a compromise : whether one or the other is, in our view, immaterial. Subsequent to the agreement the plaintiff brought the suit for one-half the property of the succession of Llula. The agreement now sued on, was urged by defendant in the previous suit as an estoppel against plaintiff. The decision in 44 An. 61 maintained that estoppel. Plaintiff’s present suit on the agreement is the sequel of her previous controversy.

The decision in the 44th An. determined that plaintiff had no right to one-half the property of Llula. But as to the agreement the decisions upheld it as an estoppel of plaintiff’s demand in that suit. The ! expression of the court in that decision, it is said in defendant’s brief was obiter. But the agreement was part of the defence. It was therefore properly passed upon. If an estoppel in the previous ease, it was because of the obligation of defendant to convey the property for which the plaintiff now sues. Therefore,'the.previous:dó-v cisión instead of forming res judicata against plaintiff supports,her present demand. ■ , ■

• As to:the exception that plaintiff is estopped from now suing on ' the agreement because she repudiated it by bringing the previous suit, we think' the decision in that suit in effect, secures her right under the agreement. The defendant affirmed the validity of .-the agreement, when she pleaded it in that suit. If valid to conclude plaintiff asserting a demand for half the property, it certainly ought. to avail plaintiff to secure that which it stipulates she shall have. The defendant in our opinion, can not, after successfully using the agreement as a shield against the demand of a different character in the previous suit, now deny the plaintiff’s right to the property stipulated to be conveyed to her by the agreement.

It is therefore ordered, adjudged and decreed that the judgment of-.’ the lower court be affirmed with costs.  