
    No. 12,077.
    Andrew H. Johns et als. vs. George W. Race.
    Where parties to a partition proceeding, although it-was not definitely closed,, have acquiesced in it for nearly thirty years, the heirs of the original parties . to the suit can not revive it and continue the partition proceeding.
    If the proceedings show that the defendant in the suit has a claim against plaintiffs on final settlement, and he made no demand for it in having it judicially-recognized, and he died many years after, in the suit by plaintiffs to continue the partition the claim of the heir of defendant in reconvention for said amount will not be allowed, for the reason the long silence of defendant presumes an abandonment of the claim.
    ON Application for Rehearing-.
    The case was remanded for liquidation and partition under the instructions of the-court as to certain items and reservation as to others.
    As to one of the items it was not contested, but admitted. In partition proceedings it is not excluded from the partition.
    The inventory taken after the ease had been remanded, not questioned as to its. correctness, is prima facie evidence in support of that item.
    To the extent and amount that the defendant was a creditor and debtor, by operation of law one extinguished the other, and there was no prescription.
    Prescription applies to the remaining balance unclaimed since many years, and, to all appearances treated as a balance after partition.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.
    
    
      John T. Whitaker and Ernest T. Floranee for Plaintiffs, Appellants.
    
      Merrick & Merrick for Widow and Universal Legatee, Defendant,, Appellee.
    Argued and submitted April 11, 1896.
    Opinion handed down April 20, 1896.
    Rehearing granted May 4, 1896.
    Opinion oil rehearing handed down June 22, 1896.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs are the sole heirs and surviving representatives of the plaintiff in suit of A. J. Johns et al. vs. G. W. Race, 18 An. 105. In that suit the defendant had instituted his widow his universal legatee. The plaintiffs sued to reduce the legacy to two-thirds and to annul it for one-third, as the deceased' left her mother, who had died before the institution of the suit, as her forced heir. The petitioners averred that the estate of the-deceased wife consisted of the sum of five thousand dollars (f5000),. received by the husband from her father’s estate, and in the additional sum of six thousand dollars, with interest coming from the-same estate, and by her mother as her natural tutrix; her half in the community which existed between her and her husband, and two lots and improvements therein, and in money and personal property. They prayed for a partition between them and the defendant, of all property belonging to the succession of the deceased wife. The decree was that the plaintiffs be recognized as the heirs of the-deceased wife; that her last will and testament be annulled so far as-it disposes of more than two-thirds of the property of which she died possessed, and that the two lots of ground, together with the improvements as they existed on the same at the time of the death of defendant’s wife, be declared to belong to the community; that defendant’s rights to improvements which he had placed on the property since the death of his wife was recognized and reserved to him; that the defendant’s account in the liquidation and partition of the succession of his deceased wife for five thousand dollars ($5000) with legal interest from the 15th March, 1853, and for the further sum of seven hundred and seventy-eight dollars and fifty-nine cents; reserving to the plaintiffs any right they may have to other property, rights and credits, not specially mentioned in the decree. A liquidation and partition was ordered of the succession of the deceased wife and the community which existed between defendant and his-wife. The case was remanded to be proceeded in according to law and in conformity to the decree of the court. The party presently-defending is the surviving widow of the second marriage of Geo. W. Race who was the defendant in the former controversy. She went into possession of all the property left by her deceased husband-The present suit is for the purpose of having a final liquidation and partition. In the partition it is alleged the purchase of the two lots-referred to in the decree of A. J. Johns vs. Race was null and void,, but these allegations were withdrawn, and there is little left in the-suit, except plaintiff’s defence to the reconventional demand of defendant.

The prayer of plaintiff’s petition is that after due proceedings-there be judgment referring the matter in controversy to Nicholas R. Trisb, notary public, for the purpose of effecting a liquidation and partition of the succession of the deceased wife of G. W. Race, late Sarah A. Jones, now held by Olivia O. Race, widow in indivisión with plaintiffs, the said Olivia O. Race being entitled to two-thirds of said property and plaintiffs to one-third, all in accordance with the decree of the Supreme Court rendered in the case of A. J. Johns et als. vs. G. W. Race in 1866, and that the defendant be entitled to account in the liquidation and .partition for one-third of the fruits and revenues of the real estate described in the partition from 1st January, 1866.

As between the parties to this suit the decree in Johns vs. Race is res judicata. The amounts to be paid to the succession of the defendant’s wife were accurately and definitely stated. The right of the defendant to claim the value of improvements placed on the property was reserved. And the right to plaintiffs to demand other rights and credits -was also reserved. Under the decree it was necessary to properly partition the property to have the same preceded by another inventory. This seems to have been recognized by both plaintiffs and defendants, for a motion for a new inventory was made by defendants’ counsel and concurred in by the counsel of plaintiffs. What informalities, if any, there were in the inventory are cured by prescription.

The inventory prayed for was made. The lots were appraised as vacant lots, and the improvements placed on them since the death of defendant’s wife were also separately inventoried and appraised. The lots were appraised at four thousand dollars; the improvements at thirty-six thousand dollars. The debts due by the husband to the wife’s succession, as ascertained by the court, with interest added to the five thousand dollars, were placed on the inventory. “Claims and credits” amounting to seventeen thousand six hundred and •eight dollars and sixty-six cents were also placed on the inventory.

A family meeting in the interest of the minor plaintiffs advised that the lots be sold for cash to effect the partition. On the first application of counsel for plaintiffs and defendants a decree was-provoked, ordering the lots to be sold for cash. The defendant in the partition suit, George W. Race, purchased the property for twenty thousand dollars.

It seems after this sale nothing was done in further prosecution of the partition. The reason for this inaction, we think, is fully accounted for by the fact that on the final liquidation the plaintiff would be indebted to the defendant. All parties lost interest in the proceedings. George W. Race, the defendant, took no steps to have the indebtedness to him to be judicially recognized, thus exhibiting a willingness to give the plaintiffs the benefit of his claim against them. All parties to the original suit are dead. They seem to have settled all the differences before death. They abandoned the suit and rested with acquiescence, if not satisfaction, upon the logical showing of facts and figures on the inventory. The decree in the-first suit was in 1866. The heirs of the plaintiffs in that suit filed the present suit in 1894. The defendant in that suit, who died in 1881, evidently never had any intention of enforcing his claim against plaintiffs. The District Judge, who knew him, speaks of his generous and magnanimous nature, and members of the court can confirm this estimate of the deceased’s character.

Under the facts of this case we do not think it would be just to the memory of the deceased to allow the demand in reconvention. It would have never been made, we are assured, but for the suit of plaintiffs. The demand in reconvention is stale and the probabilities are that both plaintiffs and defendant in the original suit had settled their differences by tacit consent, to which long silence and inaction have given the force of a positive agreement.

The judgment is amended so as to reject the reconventional demand of defendant; in all other respects it is affirmed.

Mr. Justice Miller concurs in the.decree.

On Application por Rehearing.

Breaux, J.

The plaintiffs and intervenor abandoned their demand to have the probate sale to the late G. W. Race declared null.

All questions relating to the title of the property bought at that sale are settled.

The remaining issues relate principally to an amount claimed by defendant as due by the plaintiffs.

The claim originally was not disputed by plaintiffs. It was submitted in pleadings, by which they are bound, as an amount for which they were indebted.

A decree of this court was pleaded as an estoppel, and as res judicata.

The proposition does not admit of discussion; an issue properly-determined operates as a bar to any further consideration of the subject.

In the petition for the judgment pleaded as res judicata the plaintiffs admitted their indebtedness, or rather the indebtedness of their mother, to the defendant from whom they inherited, while in the petition they claimed certain items as due to them by the defendant.

The answer in that suit did not traverse plaintiffs’ allegation admitting their indebtedness. The defendant denied his indebtedness; nothing more. This was the issue tried and decided. No reference was made to the admission, and no part of the admitted amount was incorporated in the decree. The judgment is absolutely silent as to the claim. The court did not give a judgment for the amount, nor was it on the other hand rejected.

Without pleading in point, without an issue, raised, in partition proceedings, in which there are many items, we do not think that res judicata applies. It must be borne in mind that this was not a contested claim, and that the admission was in the interest of the one against whom the judgment is now placed as res judicata.

Tn the decree, pleaded as the thing adjudged, the court reserved to plaintiffs, rights to other property, if any, they had. Johns vs. Race, 18 An. 105, 107.

In our decree in this case we held that the judgment operated as res judicata, referring to the issues pleaded, and finally •decided, and not to an amount admitted by plaintiff as due and not passed upon by the court.

It is true that the plea of res judicata can be invoked in partitition proceedings when the judgment; decides the issues. ,

It does not follow that failure to fix a credit, upon the pleading and admission of a plaintiff, bars an action for an amount silently passed over, and which did not, in any respect, enter into the judgment.

The defendant can not be compelled to reconvene.

The principle is laid down by Mr. Bigelow in his valuable work on Estoppel, p. 135. His illustration is pointed in support of the proposition that the judgment is not conclusive, and that a remedy remains to secure the admitted amount.

The judgment pleaded as res judicata decreed a partition of the property. To serve as a basis for the partition an inventory was taken in accordance with requirement of the decree. This debt to the succession due by the plaintiffs was inventoried. It is true that the partition was not made. But the inventory remained unquestioned. These many years the heirs have remained silent. It is true in the prooes verbal of the inventory it does not appear that -the heirs were made parties. Previous to the inventory, however, their attorney accepted service of the petition for the partition. It was treated as a correct inventory and offered in evidence without suggestion of error. A conclusive presumption supports its correctness. Fink vs. Lallande, 16 L. 547, 554; Drouet vs. Rice, 2 R. 374, 377. Contemporanea expositio est optima et fortissima in lege-.

The plea of prescription is interposed on part of the plaintiffs as another bar to this claim of defendant. The sale of the property reduced the assets to cash or its equivalent.

The two debts to an equal amount are reciprocally extinguished— that is, the amount due by defendant on his purchase was extinguished by an equal amount due him by the estate, inherited by the plaintiffs. These successions had been accepted by the plaintiffs. The rights were inherited. The adjudicatee was indebted for the price. He was at the same time a creditor of the heirs of the succession. Extinction took place after these many years of uninterrupted acquiescence.

This brings us to the matter of the balance remaining due on the face of the papers after deducting the purchase price from the total found due to the defendant; an issue now pressed by the defendant. The interested parties seemed for many years, while all the witnesses were alive, to have considered everything connected with these successions settled. It is now a fait accompli, not, we think, to be lightly disturbed. The difference was established many years ago and must have been well known by the parties. The defendant must have known that an amount was due. For good reasons doubtless he did not choose to claim it. In our opinion the statute of prescription applies to this balance.

The defendant and appellee apprehends that our decree affects her title. This was not the intention and it does not follow from its terms.

In order to place the matter at rest our decree is modified so. as to apply in rejecting the reconventional demand only to the amount claimed as due to the defendant after deducting Ms indebtedness from the total due him as before stated — i. e., to money demands.

With this slight modification our original decree remains unchanged.  