
    PORTER vs. DEPEYSTER.
    APPEAL PROM THE COURT OE THE PXRST DISTRICT.
    According to the Civil Code of 1808, when property was, acquired jointly by several persons by inheritance, purchase or otherwise and could not be partaken in kind, it might be partitioned by cant or licitation to the highest bidder among the co-proprietors.
    When the co-proprietors were all of full age the licitation could take place amicably and by private sale 5 but if any disagreed, were minors, interdicted or absent, the property could only be sold at public sale, after the usual advertisements, but any of them could purchase. This operated a mode of partition.
    So where joint property is sold after the death of one of the co-proprietors, and purchased by his co-proprietor, who is also the executor, -causing the sale: — ■ Meld, that it was the effect of the action communi dividando, and the executor was not deprived of his right, in common with the other co-proprietors to purchase.
    This is an action in the nature of jactitation or slander of title. The plaintiff, originally Mademoiselle Camile Prieur, now widow Porter, residing at Toulouse in France, and relic of the late Benjamin P. Porter of New Orleans, alleges that being the lawful owner of two lots of ground in New Orleans, formerly held and owned jointly by her late husband with William A. Depeyster, she has sold said lots, but the defendant, Wm. A. Depeyster, son of the late co-proprietor with her husband, pretends to have claims on these lots, to her great jnjury) preventing the purchasers from paying the balance 0f the price due thereon; that he continues to make said claim on them although amicably requested to desist :■ — Wherefore she prays judgment that he be condemned to desist from his pretended claim, and to cease slandering the title of her property, and for damages, &c., and that her title be declared valid.-
    The defendant pleaded the general issue; and averred that he was owner of one undivided fourth part of the lots in question, and that he has never been divested of his right and title either by alienation or otherwise: — He'prays that said undivided fourth part be decreed to him, and that he be put in possession thereof, &c.
    Upon these pleadings and issues the parties went to trial. The evidence showed that the two lots in contestation were purchased and owned jointly by Benjamin Penrose Porter and William Abraham Depeyster, who were practising attorneys in New Orleans. In January, 1818, Depeyster died, leaving his co-proprietor, B. P. Porter, one of his three executors, who qualified and acted as such. In April, of the same year, Porter filed his petition against Felicité Prieur, widow of De-peyster, praying for a sale and partition of the property owned and held jointly between them. This was ordered, and the sale made by an auctioneer as of partnership or joint property, when Porter became the purchaser. The sale took place in the spring of 1818. Porter having since died, and all his deseen-dants, his widow became the sole owner of the lots now in dispute. The heir and descendant of Depeyster claims upon the ground that the sale and purchase by Porter (he being executor of Depeyster,) was illegal and null.
    The District Judge was of opinion that according to the provisions of the Novissima Recopilación, lib. 10, tit. 12, law 1; and Civil Code of 1808, p. 247, art. 174, and page 68, art. 51, the purchase of property by an executor, at the sale of an estate administered by him, was prohibited ; yet this prohibition does not apply to the licitation or sale of the property held in undivided ownership between him and his co-proprietor, the ancestor of the defendant; Idem, p. 188, art. 174.
    There was judgment for the plaintiff confirming her title to the property she claims; and the defendant appealed. •
    
      Denis, for the plaintiff and appellee.
    
      Rousseau, for the defendant and appellant.
   Morphy, J.

delivered the opinion of the court.

The petition charges, that plaintiff being the lawful proprietor of two lots of ground in the city of New Orleans sold one of them to Nathaniel Dick for $30,000, and the other to John Parker for $16,300; that without any just ground whatever, defendant pretends to have some claim on the said lots, to the great injury of the petitioner who is thereby prevented from receiving a balance of the price yet due to her because the purchasers by reason of this pretended claim of defendant refuse to pay the same; that defendant has been amicably requested to desist from thus setting up any claim to these lots, but that he persists in so doing. The petition concludes with a prayer for damages, and for a decree enjoining defendant to' desist from his pretended claim and not to slander any more the title of the plaintiff to this property.

The defendant avers that he is the only legitimate son of the' late Wm. A. Depeyster, that as such he is the true and lawful owner of one undivided fourth part of the lots described in the petition, and that he has never been legally divested of his title to the same. There was a judgment below in favor of the plaintiff, declaring her title to the property to be good and valid. The defendant appealed.

The record shows thatB. P. Porter and Wm. A. Depeyster, formerly practising attorneys and partners in this city, became joint proprietors, by purchase, of sundry pieces' of real estate. Depeyster died in 1818, leaving a widow and a son, the defendant, then a minor under the age of puberty. By his last will he appointed for his executors, his wife, his partner, Porter, and Dennis Prieur, who all three accepted the trust and quail-' fied. Shortly after, Porter instituted in the District Court an action in partition, in which a judgment was rendered decreeing the sale at auction of all the property held, in common between him and the deceased, for the purpose of effecting a partition. At this sale, the lots in dispute were adjudicated to Porter, hut he and his children having since all died intestate, the property came into the possession of the plaintiff as their sole heir. In 1822, Porter, as acting executor of Depeyster, rendered his account in the Court of Probates, and one-hálf of the price of these lots was carried to the credit' of the succession. Upon examination of this account it was found correct, and a judgment was rendered approving the same, and discharging Porter from his trust.

Accordin ' to ofeiM}8VÍ1 The6 properly _ was by^séveraíper-tance,'’purchase and couhf'not be partaken in be” partitioned Nation11 to ^the amon^ the"dco1' proprietors.

The case has been submitted to us on the single question whether Porter, being one of the executors of Depeyster, could lawfully become the purchaser of the property in dispute' at the sale made to effect a partition of it.

The counsel for the defendant relies on the Spanish law then in force and to he found in the Novissima Recopilación, lib. 10, tit. 12, 1. 1; he has referred us also to 11 Martin, 297; 5 La. Rep., 20, and to divers articles of the old Civil Code. These laws and authorities establish beyond any doubt that it was unlawful for an executor to purchase the property of a succession confided to his administration. This rule is not pecu-^ar to Spanish law; it obtains, it is believed, in almost every system of jurisprudence, but does it apply to a case like the present? We think not.

The adjudication by which Porter became the sole owner of ^ property in question was not, in contemplation of law, a Purc^ase from the estate of Depeyster. When property was acquired jointly by several persons by inheritance, purchase or otherwise, and it could not be partaken in kind, our late Civil C'0’!® pointed out as a means of partition the cant or licitation ^ among them. It consisted in adjudging the common property to the highest bidder for it among the co-proprietors. When they were all of full age, the licitation could take place amicably and in such manner as they agreed upon; but if any’ one of them disagreed, was under age, interdicted or absent, the property could be put up for licitation only at a public sale, and after the usual advertisements; Civil Code of 1808, p. 188, arts. 172, 175. The adjudication of the common property, if made to a stranger, operated as a sale to all intents and purposes ; but when made to one of the co-heirs or co-proprietors it was not in law a sale, although it bore all the appearances of a sale. It was .considered a mode of partition, one of the effects of the action communi dividando; in the words of the Code, it was the complement of the partition; Idem, p. 188, art. 174. The adjudication to one co-heir or co-proprietor had only the effect of putting an end to the indivisión and of determining the rights of the joint owners in the common property; before ticitation, the right of each co-proprietor extended to the whole and to every part of the undivided thing; there was no portion of it to which each co-proprietor could be said to be without any right; it was Totum in toto, et toivm in qualibetparte. By the effect of the licitation, the right of the co-proprietor •who gave the highest bid became absolute to the whole property, while that of each of the other owners of the property resolved itself into a claim for their respective shares of the money for which it was adjudged. No new title passed by the licitation, and the co-proprietor who kept the property at the highest bid was considered in law as having been the sole owner of it from the beginning, under the obligation of. paying to his co-proprietors their proportions of the price to which it might subsequently be carried by licitation between them.

When the co-proprietor s were all of full age the licitation could take place amicably and by private sale; but if any disagreed, were minors, interdicted or absent the property could only be sold at public sale, after the usual advertisements, but any of them could purchase. This operated a mode of partition.

In describing the effects of licitation, Pothier says, “Lorsque plusieurs légataires ou plusieurs acquéreurs licitent entr’eux un héritage qui leur a été legué en commun, ou qu’ils ont acquis en commun, celui d’entr’eux qui s’en rend adjudica-taire, est censé avoir été directement légataire ou acquéreur du total de l’héritage, a la charge seulement de faire raison a ses co-légataires ou co-acquéreurs, de leur part dans le prix auquel Pheritage serait porté par la licitation qui en serait faite pntr’eux.”

So where death of one of the co-propwe-tors, and pur-proprieto^'who cutor,° ^causing thatSit6'wa?the effect of the aetion communi dividando, and the not°deprivedVof common'1'tj with the other co-proprietors to purchase.

“II suit de ces principes que la licitation entre co-béritiers ou co-propriétaires n’est pas dans notre droit un contrat de vente que les parties licitantes fassent de leur part daps l’hé-ritage licité a celui d’entr’eux qui s’en rend adjudicataire, puisque suivant les susdits principes, 1’adjudicataire n’acquiert proprement tiers de ses co-héritiers ou co-propriétaires.”'— Traité de la vente, No. 638, 639. This doctrine is held by all the writers on the Napoleon Code from which have been borrowed the provisions of our Civil Code on the subject. 2 Tro-plong, vente, No. 859, and fol. and No. 876; 12 Toullier, No. 155; Merlin, verbo licitation; Civil Code of 1808, p. 366, art. 118, p. 206, art. 249, p. 188, art. 174. If then the adjudication to Poster was only one of the effects of the communi dividando, we cannot think that the circumstance of his being the executor of Depeyster had deprived . ° . him of the right which he had, in common with his co-proprietors, of keeping these lots at the highest bid they might reach- at public sale. If instead of a partition effected by lici^tion, ?■ partition in kind had taken place, it would surely not be contended that Porter could acquire no portion of the pro-r perty partaken because the estate of which he was executor had in it an undivided interest; in either mode of partition his io ^ property would have been the same. The rule that an executor cannot purchase property of the estate he J administers, does not therefore in our opinion apply to a case like the present. This was intimated in Scott’s executrix vs. Gorton’s executor; 14 La. Rep. 122. The very object of the partition was to determine what property belonging to De-peyster’s estate, was to be administered upon. Until this was done, it could not be known whether the right of the estate was to the property itself or to a sum of money. According to the principles above laid down, the very moment the adjudication was made to Porter, his former co-proprietor was considered in law as having never had any title to the lots themselves, but only a right to receive a proportion of the money they, might bring by licitation. The share of the deceased in the common property which by the partition was determined to consist of a sum of money, has been administered upon by the executor and his account has been duly homologated.

The judgment of the District Court is therefore affirmed with costs.  