
    Heirs of Guillotte v. City of Lafayette.
    Where the capacity of an administrator is not put specially at issue by the pleadings, ho is not bound to prove it.
    The abandonment contemplated by the act of 1st of June, 1846, for the opening of streets in the city of Lafayette, is one to be made by the owner; and where the property belonged to the community, the surviving husband can only abandon his interest in it.
    The interest of a deceased wife in the community is vested in her heirs upon her death.
    The registry laws do not require the recording of titles by descent.
    The doctrine of estoppel by matters in pays is seldom, if ever, applied to married women.
    APPEAL from the District Court of Jefferson, Clarke, J.
    
      C. Redmond, for plaintiffs,
    contended: The pleadings put nothing at issue, except the conclusiveness of the expropriation proceedings, in favor of the title asserted by defendant. Nothing is denied; nothing else is averred, than that the corporation acted in good faith under the law, in opening Magazine street; that the property claimed was enrolled on the tableau of the commissioners in the name of P. A. Guillotte ; that he was in possession of said property at that period; that the title to the same was recorded in his name; that he was the owner so far as they had been enabled to ascertain, and that he having surrendered the property thus situated, they had become irrevocable owners of the same.
    On the trial it was proved, that if Mrs. Guillotte was literally not the “oldest inhabitant” in the parish, at least she and her husband were one of the oldest couples therein. We introduced the marriage contract, dated 1793, establishing a community of acquests and large dotal rights, two acts of sale, dated 1811 and 1836, establishing the purchase by the community of the land claimed, and of that taken for the street; proved the dissolution of the community by the death of Mrs. Guillotte, in 1844; that her demise occurred in the parish, and was known to everybody, and to the mayor of Lafayette, and one of the expropriation commissioners; most particularly that, in 1847, when Magazine street was opened, it was a fixed fact which must have come home to the public authorities, no matter how supine, in fifty different ways; that through sheer negligence the land now claimed was appraised in the name of P. Guillotte alone; that after its surrender by him, the half of it was appraised at the same price by an ex-commissioner, and inventoried by him, as belonging to the estate of plaintiff’s mother; better still, that the sum of $225, due by the corporation for her half share of the portion of land contiguous to the above, taken by said city to extend Magazine street, was likewise inventoried as an asset of the estate of Caroline Guillotte, by the self-same ex-commissioner.
    The judge a quo saw this proof before him, and was not able to realize the fact, that Magazine street had been either opened, widened, straightened, or extended by Guillotte s surrender of land adjoining to it. He considered, moreover, that by the fourth section of the act of June 1st, 1846, the commissioners of appraisement are only required “to make a just and eqnitable assessment, 1st, of the lands and improvements to be taken; 2d, the loss and damages sustained ; and 3d, the benefits and advantages to the respective owners, lessees, parties and persons, respectively interested in the lands and premises so required, or to be improved for the purpose aforesaid; 4th, also of the benefit and advantage such improvements may be to all the lots and premises adjacent, or in the vicinity of such improvements, or which said commissioners may deem benefitted thereby according,” &c. That these four things, together with the names of the owners, lessees, parties and persons entitled to and interested in said lots and premises, “as far as the same can be ascertained,” constitute the elements of the estimate and assessment, which together with the plans and report, the 5th section of said act declares shall be final and conclusive, “as well upon the said city of Lafayette, as upon all persons and parties interested in the lots, lands, and premises mentioned in said report, and on all other persons whomsoever.” Nor was his honor unmindful of the fact, that this 5th section immediately precedes the 6th, which provides for cases of voluntary surrender, and under which the defendant claims; that this section having said, that the whole property shall be assessed “without reference to the future improvement thereof proceeds thus: “and the owner or owners thereof shall be entitled to receive from the said city of Lafayette the assessed value thereof, if said owner or owners shall file his or their written assent thereto with the clerk of said. court, within ten days after the first publication of the notice, that the report of assessment is deposited with said clerk; in which case the whole of said lot of ground and improvements shall become the property of said corporation, &c. But if such owner or owners should make no selection within the time above specified, he or they will then be deemed as having agreed to retain such part of his or'"their said property as may not be required for said improvement, and subject himself or themselves to the provisions of this act, when the report of said commissioners shall be confirmed.”
    It thus appears, that the statute of June 1st, 1846, recognizes the distinction which we have taken between a voluntary and a forced surrender.
    The land “to be taken” is well taken, if the names of the owner, “as far as can be ascertained,” is set forth in the report of assessment. That report must set forth the land to be taken; the damage which its taking causes; the benefit which accrues from the taking; the name of the owner: to ascertain which due diligence must be used. This report, so made, and none other, the law says, is conclusive against the world. The next section simply provides, that “the owner” shall have right to relinquish the land forming a part of that needed for the proposed improvement, at a fair appraisement. The owner alone can do this; that is, the real owner, and not the person who shall have been promoted by the commissioners to a place on the expropriation list. Besides, it is impossible to extend the binding effect of proceedings which must be had under the 4th or 5th section, to those which may or may not be had tinder the 6th.
    One word more on the subject of this statute: It must be read by the light of the constitution, which says, that “no vested rights shall be divested unless for purposes of public utility and for adequate compensation previously made.”
    It is very evident, that with the assistance of the statute and the constitution, we could recover the land in Magazine street if we chose. For our interest had vested, nay, our title was complete; our names could have been ascertained, and were actually known to one of the commissioners at least. No compensation has been made to us or to anybody else, either previous to or since the pretended divesture of our rights; the promise, not fulfilled, to raise mortgages affecting the property, is not compensation. The right of taking one man’s property, and paying another man for it, is claimed by the statute. It may not be possible for judicial ingenuity to reconcile this right with the constitutional provision for compensation. However, we do not apprehend that any such question is before the court.
    The defendant’s title in this case being equivalent to naught, her counsel have endeavored, by prefixing thereto a numeral of their own selection, to give it a considerable figurative value. The numeral, in this instance, is a charge of fraud; but fraud is not plead; it is impertinent to the issue; and if it could be argued, a motive must be assigned to justify the accusation. Here there is none imaginable. The property was surrendered at its cash value, “without reference to its future improvement,” upon the defendant’s assurance that they would “release mortgages to that amount.” That property is now appraised at ten thousand dollars, in consequence of the opening of Magazine street, which gives it a frontage on three streets. It was sold for $3200, to be thus paid, but fifteen months previous to the institution of this suit. By simply keeping the property they were sure to realize a large profit. What interest could they have in selling it on such terms, except to forego that profit, and to make themselves individually responsible for the difference between $3200, and the amount of the mortgage debts.
    The plea of inferential agency is, if possible, still more repugnant to the pleadings and facts than the charge of fraud. It is, nevertheless, the same idea presented in a different garb; the pretended agent is secretly constituted for a fraudulent purpose, and then fraudulently disavowed.
    To predicate such charges on the mere fact of relationship, and the presence of three out of eight of the plaintiffs in the parish of Jefferson, whilst the expropriation was going on, is cynical in the extreme. To urge them in the Supreme Court, for the first time, and that too in defiance of the pleadings, implies, in the party pursuing such a course, a singular confidence in their own powers of moral suasion.
    The same observations will apply to the objection that the administrator has no capacity to sue. That capacity has been judicially confessed beyond the possibility of retraction. No facts, however significant, can be adverted to for the purpose of gainsaying that admission. If this be not the law of pleading, then judicial investigations degenerate at once into hot-beds of equivocation, in which every admitted fact becomes the nisus formativus of a new controversy.
    Should the court, in despite of these considerations and of all precedent, entertain the objection, we then say, that the appointment of the administrator, acquiesced in and supported by the heirs, is not to be controverted incidentally by a party from whom he seeks, conjointly with the heirs, to wrest an asset belonging to the estate. That all the parties in interest are before the court; that it is idle to undo what has been done for the purpose of doing it over again. That the suit by the heirs is good per se, and the joinder of a quasi-administrator is no objection to its maintenance. That if it had been so brought, the defendant could have excepted to the absence of the quasi-administrator with much more propriety than he now excepts to his presence. That the right of a defendant to except to the legal capacity of a plaintiff is circumscribed by the defendant’s interest at stake in the controversy. That defendants having gone to trial without raising the objection, it was demonstrated that they had no title to the property-claimed by the plaintiffs, but that the same belonged to the estate of Mrs. Guillotte. That, at all events, this suit was a conservatory process to prevent the spoliation of an unrepresented estate. That it was carried on before the judge of probate who had appointed the administrator, and his countenance of the action after the probate proceedings had been introduced in evidence, is equivalent to his nomination as administrator ad hoc. And, to end by the beginning, the probate “record” was not introduced, but simply the “ probate proceedings,” to show the notoriety of the demise of plaintiff’s mother, and for no other purpose, to which plaintiff’s bond or oath could in no manner conduce. Again, after our introduction of these proceedings, they were introduced by defendant specially for the “ purpose of showing the date at which the succession was opened, and the death of Mrs. Guillotte.” They cannot now be used for any other than the then avowed and specified purpose.
    It were a hopeless as well as a Herculean task to endeavor to meet the authorities quoted by the defendant’s counsel, or to out-quote them. Suffice it to observe that they have fully established the proposition, that the title to one-half of (die community of acquests does not vest, by the demise of the wife, in her heirs And this, too, without adverting to the case.of German v. Gay, 9 Louisiana Rep. 582, in which one of them was engaged. Doubtless, under the circumstances, it was more proper to rely upon Rent & Collyer, and upon Sumner & Metcalfe’s Reports, than upon N. S. vol. 6, p. 401; Louisiana Code, 2371, 2374, 2375 ; Guice v. Lawrence, 2d Ann. 228, whose proximity to the scene of action might subject them to the suspicion of laboring under local prejudices.
    Still less can we undertake to challenge the array of decisions by which the law has been settled to admit of the retractation of judicial admissions. We ourselves should not have suspected that they were susceptible of being so construed; but the best proof that they can be, is that they have been. Here, then, we have another striking illustration of the melancholy truth, that language, when under the management of even its greatest masters, is at best but a very unsafe vehicle for the conveyance of thought.
    As an offset against the eight cardinal points raised by the defendant on appeal, we beg leave to suggest one, namely : That to make the voluntary transfer of the land claimed obligatory on us, that transfer should have been recorded, and that the transcript affords no proof that this has been done as regards the land really sold fronting on Magazine street.
    
      Ogden and Duncan, also for plaintiffs,
    contended: It is shown that the property in controversy was purchased during the coverture; that Mrs. GuilloUe died in 1844, and that the plaintiffs, as her heirs, claimed the estate by a formal petition filed in court, on which process issued at their request. It seems to us that this makes out clearly the prima facie case on which plaintiffs were entitled, that being all the evidence, to a judgment in their favor.
    By the Spanish law, whatever husband and wife acquire or purchase during the marriage, is community; it matters not whether the purchase was made in the name of either or both, because the time of the purchase is alone to be considered, not the party in whose name it was made. Bruneau v. Bruneau, 9 M. R. S18, 219. Where there is no testimony as to the acquisition, every thing holden by husband and wife is presumed to be common at the dissolution. 7 M. R. 362. The statute regulating the rights of husband and wife is real, not personal; it regulates things and subjects them to the laws of the country where they are found. 7 N. S. 42. And in this case the opiniou of the court, by Judge Porter, cites with approbation the opinion in Saul v. Saul, which decreed community to exist jvhere the parties were married out of the State. It goes further and says, tl)át the Fuero Real and the article of the C. C. 2370, do not affect the right at all; that community in land situated in this State exists even if the married persons never were in the State at all. Cole v. Cole. On the death of one of the spouses the community is terminated ; each party is seized of one undivided half of the property composing the mass, and the surviving party cannot validly alienate the share not belonging to him. Brousard v. Bernard, 7 L. R. 222. “The succession of the deceased was acquired by his heirs from the moment of his death, and with it the right to institute all the actions which the deceased could have instituted. These rights are not suspended during the delay allowed by law to the heir to decide whelher he will accept or renounce the succession.” Womack v. Womack, 2d Ann. 341. Where timéis taken to deliberate, the judge is not bound to appoint an administrator, unless some of the creditors of the succession require it. Bryan v. Atchison, 2d Ann. 465.
    It was argued that the beneficiary heir has no title to any thing but the surplus. In support of that position were read from the Civil Code, articles 940, 1024, 1042 and 1051. According to article 940, the succession is acquired from the moment of the death; if accepted, the heir is considered as seized from the instant the ancestor died; but this right is in suspense till the heir accepts or rejects; and by article 1010, the renunciation is never presumed, but must always be made by a solemn act before a notary. By 1024, the faculty of accepting within prescription is preserved with certain limitations and reservations, even to those who may have formally renounced. By 1042, the administrator is given the same general power which is granted to curators of vacant estates. Article 1088 tells us that a vacant estate is one that no one claims, or to which the heirs are unknown, or one which the heirs renounce. By 1051, it is provided that when the estate is accepted with the benefit of inventory, the administrator shall sell the property, pay the debts, and that he shall hand over the surplus to the heir.
    Now, it seems to us that all this does not establish the proposition contended for, that the beneficiary heir has no title to any thing but the surplus; for the code no where says that the title to the mass is in the administrator, as it is in regard to chattels at common law. It is clear, that the title may be in one person, and a faculty or power of administering that property be in another; take, for example, the heir at common law, with a power given by will to the executor to sell that property, or take the case here of an estate, the title of which is in A. and the usufruct in B.
    Upon the decisions of the Supreme Court of Louisiana our mind comes to the conclusion, and we express it with great distrust in opposition to the expressed opinion of counsel of so much learning as those opposed to tis, that the title to the property composing the mass, and not the surplus only, is in the beneficiary heir, and that he holds this title subject to a power of administration on the part of the administrator. This adhiifiistrator is required to be appointed only at the instance of creditors, and for their protection, by the Code of Practice, which being made after the Civil Code, controls it. At common law the administrator was clothed with the title of the personal property, and the Parliament of England had to compel him to distribute the surplus, and to point out the'mode in which the distribution should be made; the real estate oftfy descended to the heir.
    The argument of the counsel would involve the conclusion, that in Louisiana the title to the whole estate, real and personal, would vest in the administrator whenever the heir accepts with benefit of inventory. The title, we take it, must be somewhere: it cannot rest in abeyance at a time when it is directed to be sold and conveyed. It must, it seems to us, be either in the administrator, subject to the distribution of the surplus, or in the beneficiary hoir, subject to a power to be exercised by the administrator.
    It cannot be claimed that this is a vacant succession, or one which is subject to the rules applicable to a vacant succession; here is a succession the heirs to which are not unknown ; and it is not, we may say, one which the heirs have renounced. On the contrary, the heirs are known and claim the estate, and have actually sued for it by a petitory action as heirs.
    Tho case of McCullough v. Minor is also relied on by defendants; that only decides, that for the purposes of proscription a vacant estate shall be regarded as an entity, and that prescription shall run against it. Could prescription run against this succession on the principle of the luereditus jacens? We apprehend it could not, because it is a succession represented by heirs who are known, and who not only have not renounced, but have actually brought suit to recover it.
    We go farther, however, and contend that these heirs, by the original petition in this cause, accepted absolutely, and that they could not, if they would, throw off the responsibility incurred by that act. By selling any thing belonging to the estate, the heir accepts. The code, from 982 to ¡006 inclusive, lays down the rules by which an heir may be presumed to accept. Whenever he does an act which he would not have a right to do, except as heir, it shall be presumed that he accepts rather than that he has trespassed. If sued as heir and he lets judgment go against him by default, this mere passive conduct shall conclude him. C. C. 994. And when once made he cannot dispute its validity. 1003.
    The rules on this subject are precisely analogous to the rules at common law on the subject of accepting and renouncing the office of executor; and at common law it is-expressly decided, that bringing an action for a debt of the testator, is such an- act of administration as shall make a consent and determine the election. See SI Vineras Ab tit. Executor, (B. a.) 1.
    
      Benjamin and Micou, for defendant,
    contended : 1. Plaintiffs are without capacity to sue; as shown on tho face of the record. They declare that they sue as beseSdary heirs, and only appear for the purpose of joining the administrator, in-aw act of administration. Under such allegations they cannot maintain a. suit for the succession, which must be represented by an administrator. C. C. 1024, 1051, 1042, 1066. Psultney’s Heirs v. Cecil, 8 L. R. 342. Davis’s Iieirs v. Elkins, 9 L. R. 147. McCullough v. Minor, 2d Ann. 468. 2. Jacques Arthur Guillotte,. who assumes the quality of administrator, has no capacity to act ns such, having given no security, nor taken the oath as-adminisfrator. C. P. 976. C. C. 1034, 1042, 1119, 11*25. It is true, that the capacity of administrator was not specially put at issue, and he was not bound to prove it under our jurisprudence ; but, on- the face of the record, he has made the proof himself that lie is without, authority. None of our derisions go so far as to intimate that when such proof of want of capacity is given, the exception is not available for the defendant. Indeed, the language of the court implies the opposite principle. Moorehead v. Thompson, 1 L.- R. 283. Tucker v. Lisle, 4 L. R. 328. McDonald v. Millaudon, 5 L. R. 40S. On the' merits, defendants contend: 3. That the proceedings for the opening of the' street, under which the title was vested in defendants, were proceedings in rem,- and as such binding on all the world. The statute of 1846 declares, by express provisions, that the proceedings under it are in rem ; the whole context shows this. See particularly sections 5 and 6. Proceedings in rem, by their very nature, are conclusive on all the world. 1 Phil, on Evidence, 328, 354, 357, 346. 3 Phil, on Evidence, 853, note 609, p. 882. Canaan v. Greenwood Turnpike Company, 1 Connect. Rep.
    
      The principle applies to all courts acting in rem, on any subject matter whatever, or where jurisdiction over the subject matter is peculiar and exclusive. It applies to probate courts acting on wills. Bogardus v. Clark, 4 Paige, 623. Laughton v. Atkins, 1 Pickering, 547. Blount and Wifev. Barrack, 4 Wash. C. G. R. 659. To Admiralty Courts acting on ships and vessels in prize causes. The Mary, 9 Cranch, 126, 144. Baudue v. Nicholson, 4 L. R. 85, 86. To Exchequer Courts Acting on revenue laws and forfeitures and confiscations. 1 Phil, on Evidence, 354, 357. To commissioners acting on the opening of slreets in cities, under statutes antilogous -to that now .under consideration. Owners, Sfc. v. Mayor of Albany, 15 Wendell, 3/4. In which case, the effect of notice by advertisement, is also considered.
    4. The legal title to the property was exclusively in .the .father. The right of his wife’s heirs was an equitable title merely, and contingent on their acceptance of the succession. Even that equitable title was not a distinct interest in the specific property in controversy for the one-half, but an .interest in abeyance until the settlement of the community. Whilst the legal title was in plaintiff’s father, third persons acting in good faith could acquire it .free from the equitable claim, which was dormant and secret. Collyeron Partnership, 118,119. Hoxic v. Cave, 1 Sumner, 182, 183. Byer v. Clark, 5 Metcalf, 580. McAlister v. Montgomery, 3 Kayer, 96. 3 Kent’s Commentaries, 3-3. Bcdot y Ripoli v. Modna et al., 12 R. R. 561. The above cases apply to partners, whose rights in the partnership property are precisely those of the parent and the heirs of his pre-deceased wife, as representing her share in the community. We specially refer to the reasoning of the court in the above cited cases, in 1st Sumner, and 5th Metcalf. See also, 1 American Leading Cases, 336, and note.
    5. The plaintiffs are bound by the proceedings, because of their presence and knowledge of the proceedings, and failure to oppose. Their present claim, under such circumstances, is treated in law as a constructive fraud. 1 Story’s Equity Juris. § 384, et seq. ¡Drewry on Injunctions, 36 vol., Law Library, 36, et seq. Cook et al. v. West. 3 R- R. 332. Thomas v. Scott, 3 R. R. 526. Weld v. Peters, 1st Ann. 434. Erwin v. Lowry, 7 Howard S. C. Rep. 183. Plaintiffs are estopped by this conduct. 2 Smith’s Leading Cases, 30 vol., Law Library, 121. Bexitmi v. Erwin, decided during the present term, and cases there cited.
    6. The plaintiffs were represented by their father, as their agent, and aro bound by his acts.
    Although this agency was not directly proven, .it is established by irresistible presumption : .1st. From the relationship of the parties. 2d. From the fact that all the parties were joint owners, and the party who acted alone was the one that held tlie largest interest in the property. 3(1. From the fact that the property was under mortgage for more than its value; which was a motive with plaintiffs for .allowing their father to dispose of it in the best possible planner, for extinguishing the debt on it. 4th. From tlie fact that during the who]e.proce<etdings for the opening of the street, from the 24th December, 184,6,-to -the 4th September, 1847, this -agency was exercised publicly and notoriously, 'by his representing the whole property in their presence, without .objeetiou. 5th. From .their allowing the recorded title to stand unchanged in his name, from their mother’s death in February, 1844, until a period subsequent to the transfer by him on the 30th June, 1847.
    These facts, and the internal evidence afforded fey the whole history of the case, as shown .in the record, form a presumption of agency much more violent than .that afforded by mere lapse of time. Yet, it has been repeatedly held, that the mere lapse of twenty years, unaccompanied by any other presumption, will be held as conclusive proof of agency. Bedford v. Urquhart. 8 L. R. 248. Bourguignon v. Boudousquie, 6 N. S. 153. Belabigarre v. Second Municipality, 3d Ann. 238.
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action. The city of Lafayette acquired from P. A. Guillotle, who represented himself as the sole owner thereof, a piece of ground, under-the sixth section of an act entitled an act to provide for opening, widening, extending and straightening, laying out, enclosing, and improving streets, &cM approved on the 1st of June, 1846, which provides that in all cases where any portion of a lot of ground, not exceeding two acres, shall be required for the purposes of the act, the commissioners shall fix the value thereof, at the time of the assessment, and without any reference to the future improvement, a]| the buildings and improvements then existing thereon; and the owner shall be entitled to receive, from the city of Lafayette, the assessed value, if he shall file his assent thereto, with the clerk of the court, within ten days after the first publication of the notice, that the report of assessment is deposited with said clerk ; in which case, the whole of said lot and improvements shall become the properly of the corporation.

The consideration of this sale was the sum of $3200, which, says the act, “ is retained and held by the mayor and city council, subject to the demand of the mortgage and privilege creditors of the vendor, to be disposed of and distributed according to law, and the eleventh section of the act of 1846, with which retention the vendor declares himself satisfied, and grants full acquittance and discharge therefor.” It is not shown that any portion of this sum has been paid.

The property sold formed part of the community between the vendor and Caroline Ducasse, his wife, who had died before the sale. Her heirs and the administrator of her succession, now claim the undivided interest which they allege vested in them at her death. The answer of the defendants admits the purchase of the property, for purposes of public utility; and avers that the plaintiffs cannot recover it while it belongs to the public. It also contains a general denial, and the prayer that P. A. Guillotte may be cited in warranty, which was done. There was judgment in favor of the plaintiffs, for one undivided half of the land, and a judgment of non-suit on the claim in warranty. The defendants appealed against the plaintiffs only.

On the appeal, the points have been made, for the first time, that the administrator has no capacity to act, having given no security, nor taken the oath required, and that the other plaintiffs, alleging themselves to be beneficiary heirs, are also without capacity as such to maintain the action. The defendants’ counsel admit that the capacity of the administrator was not specially put at issue, and that he was not bound to prove it; but say, that the mortuary proceedings in the succession of Mrs. Guillotte, offered in evidence by himself, show his want of authority, and the defendants are entitled to take advantage of it.

On suggesting to this court, that on the face of the record it appeared that the record of the mortuary proceedings of the plaintiff’s mother was offered in evidence, and that although certain mortuary proceedings were copied with the record, no certificate of the clerk was therein contained, to show whether the proceedings so copied were all of the mortuary proceedings, or only part thereof; the defendants’ counsel obtained a writ of certiorari, commanding the clerk of the district court to perfect the record, by filing a copy of all the mortuary proceedings, if any there be, or a certificate stating the fact that the proceedings already copied into the record are all the mortuary proceedings. It would seem from the return to the certiorari, that the administrator did not give bond and take the oath required, till after the institution of this suit.

The writ of certiorari was of course granted without prejudice. "We are of opinion that the record was complete as it stood, and that the writ was improvidently issued. We do not understand the words in the note of evidence, “the probate proceedings in the succession of Mrs. Guillotte," as necessarily implying that the entire mortuaria was offered ; that portion of it which was read in court and filed by the clerk was alone in evidence. The certificate of that officer, that the record contains a correct transcript of all the proceedings had, of all the evidence adduced, and a true copy of all the documents filed, in the cause, shows what that portion was.

The evidence upon which the defendants rely, not being in the original record, we cannot notice it. But besides, the other plaintiffs have made themselves parties to the suit, and assumed the quality of heirs. They have, therefore, an undoubted right to stand in judgment, even if the administrator had not. On the merits, we are of opinion that the title of the plaintiffs to the portion of land necessary for the opening of Magazine street, may have been divested by the proceeding in rem, and that, as there were upon the property judicial mortgages, which, from their dates, must be presumed to have originated in community debts, the defendants could only be required to apply the amount of the assessment to the payment of those mortgages. It is not, however, necessary to examine that question in detail, as the counsel of record for the plaintiffs has abandoned that portion of the claim.

In relation to the remainder of the land of which Guillotte made an abandonment to the defendants, it is clear that the abandonment contemplated by the law, is one made by the real owner, and that in this case, the defendants acquired nothing more than the undivided half interest of Guillotte. This case does not materially differ from that of P. F. Smith, Under-tutor, v. Syndic of Dorsey, lately determined. In that case, the property was still in the possession of the syndic of the husband; in this, it has been sold, but not paid for. There is no proof, in either case, of the insolvency of the community. As the registry laws do not require the recording of titles by descent, the legal title did not continue in the father, after the death of his wife, and parties purchasing from him were bound to make inquiry.

We know of no rule of law under which Guillotte can be held to have acted in the sale as agent of the plaintiffs. It is urged that the plaintiffs are bound by the proceedings which resulted in the transfer of the property, because of their presence, and of their failure to oppose them.

Only three of the eight plaintiffs reside in the parish of Jefferson. Two of them are married women, to whom the doctrine of estoppel by matters in pays is seldom, if ever, applicable. The other is a widow; she alone could come under the rule invoked ; but there is nothing in the record which would justify us in subjecting her to it. Her residence in the parish, is the only circumstance from which her knowledge of the proceedings is to be inferred, and that is clearly insufficient. It is said that her claim under the facts of the case, should be held in law a constructive fraud. But the fact is overlooked, that as the defendants have not yet paid the price, no fraud has yet been consummated. We have not noticed the motion to dismiss, because none of the grounds upon which it rests are at all tenable.

It is therefore ordered, that the judgment so far as appealed from be reversed. It is further ordered, that the defendants be quieted in their possession and title to that portion of the ground in controversy, now forming part of Magazine street. It is further ordered, that the plaintiffs recover of the defendants, the undivided half of an irregular piece of ground, situated in the city of Lafayette, between Camp, St. Mary, and Magazine streets, measuring 304 feet 3 inches 1 line on Camp-street, 133 feet 3 inches 6 lines on St. Mary-street, 103 feet 7 inches on Magazine street, and 143 feet 3 inches 4 lines on the line which divides it from the lot sold to the defendants by A. Huard. It is further ordered, that the defendants pay the costs of the district court: those of this appeal to be paid by the plaintiffs and appellees.  