
    No. 6530.
    Augustus F. Hickman vs. Gustave J. Freret et al.
    In order to make a valid appraisement of the undivided interest of an heir in a succession -which has been seized under a fi. fa., it is proper to appraise, not each separate effect of tho succession, and then estimate the value of his share-of such effect, but to appraise his interest as a single, undivided thing, and estimate its value, after deducting the debts and charges of the succession.
    APPEAL from the Fourth District Court, pafjish of Orleans. Campbell,. J.
    
    
      Julien A. Seghers for plaintiff and appellant.
    
      McEnery, Ellis & Ellis for defendants and appellee.
   The opinion of the court on the original hearing was delivered by Egan, J., and on the rehearing by Spencer, J.

Egan, J.

The only facts material to the issues in this proceeding-are the following: The plaintiff, a judgment creditor of the defendants,, sued out a writ of fieri facias under which the sheriff seized and adverUsed for sale — -to use the language of his return and of the notice of ¡seizure and advertisement, all of which are accordant — “ All the right, title, and interest of Gustave Joseph Freret and William Peter Freret as heirs at law of the succession of their late father, James P. Freret; their ■said interest in said succession consisting of one undivided twenty-sixth ■piart to each of them in and to the property hereinafter described, to witthen follows the specific description in detail of three certain portions of ground in the city of New Orleans, numbered from one to three; •fourth, a certain mortgage note; and, fifth, sundry bills receivable. The property was separately appraised ; No. 1 at-$1500 ; No. 2 at $1800 ; No. 3 at $8000; No. 4 at $250, and No. 5 at $25 cash, making the appraisement of the undivided interest of the defendants in the whole property thus seized, appraised, and advertised for sale amount to the sum of $3175. At the sale the entire interest of both defendants, as thus described, was bid in by J. H. Lagroue, for the sum of S2125, a few dollars more than two thirds of the appraisement. Lagroue not having ■complied with the terms of sale, and the sheriff not having completed the adjudication by making title, the present rule was taken by the plaintiff to compel them to do so. The mode of seizure adopted was, to ■say the least of it, very unusual. Although the sheriff professed to ■seize all the right, title, and interest of the heirs in the succession, he describes that interest in all the proceedings, as we have seen, to be one -undivided twenty-sixth part to each of them, in and to specific property; and thereupon the sheriff proceeded to have each piece of property, and -the interest of the defendant heirs in each piece of property, separately ■appraised, just as though they held it in indivisión by any other right or title, and not merely as succession rights subject to the settlement of the succession. It is not true to say of an heir that he is interested as •such in any proportion -in any or all of the properly of the succession. If he be heir, he is interested in proportion to the number of heirs in the ¡succession as an entirety, subject to its settlement and the payment of its debts. It is that interest, and that only, which as an incorporeal right is allowed to be seized and sold under article 647 of the Code of Practice. See Noble vs. Nettles, 3 R. 152; Mayo vs. Stroud, 12 R. 105; Diamond vs. Courtney, 12 Annual, 251. In the present case the appraisement which regulated the sale was not that of the right of the heirs, but of specific interests in specific property, appraised for the purposes of ■the sheriff’s sale separately, and as though the interest of these heirs were as well ascertained and as definitely fixed, with regard to each piece of property appraised, as'if it were held by them as joint owners •with other co-proprietors. While it is as necessary, then, to appraise for •the purposes of forced sale the incorporeal thing, the right or interest ■of an heir in a succession, and while for that purpose it is proper to take into account the property of which the succession consists, it is not that property or any specific or proportionate interest in it which is subject to seizure and to sale, and consequently to appraisement with that view ; but it is simply the right or interest of the heir in the entirety, the succession, and subject to its settlement and the payment of its debts and charges, which should be appraised, as it alone can be seized or sold. This was not done in the present case, and without it the sale was not lawful, and can not be enforced; practically, the purchaser was made by this appraisement to pay for what he did not get, and might never get. That it was not the right of the heir which was appraised, is manifest, as in order to do that it was necessary to take into account not merely the value of the succession property, but also the amount of the debts and charges to which it was subject.

The court below discharged the rule at .the cost of the plaintiff.

The judgment is correct, and is affirmed.

On Rehearing.

Spencer, J.

The right of an heir in a succession is an incorporeal thing. It is an entity, a unit. It does not consist in specific interests in specific things; for when determined and ascertained by the liquidation and settlement of the succession, such things may form or constitute no part of what the right embraces. It is not true to say that the heir owns any particular part of any particular property composing the succession. You can not seize or sell'his interest in any specific thing belonging to the succession, and, therefore, you can not appraise specific and particular things in order to a sale of his hereditary right. His right of succession is in some sort indivisible. No one can seize a fraction of it. It is a single right and not an aggregation of many rights. It must be seized, appraised, and sold as a unit. For the purpose of approximating its value, the appraisers would of necessity take into consideration the value of the active mass of the succession, and, also, the passives, or debts and obligations thereof. They would thus ascertain the probable net value of the succession in globo, and fix the value, of the heir’s succession right by taking the aliquot part represented by him as heir.

As stated in our former opinion, the appraisement in this case seems-to have been made by separately valuing the heir’s interest in each of several pieces of property said to compose the succession. It is true that the appraisers then put the value of the “total undivided interest”' of the defendant heirs at a round sum of 13175. Perhaps it is the mode of reaching the conclusion as .to value which is irregular, rather than the conclusion itself, since there is a round sum declared by the appraisers to be the value of the heir’s right under seizure.

But if the seizure and appraisement be regular, under the mortgage "certificate there could be no adjudication at the price said to have been 'bid by Lagroue, $2125. The recorder of mortgages certifies as existing ■on the property seized the following mortgages “in the names of Gustave J. Freret and William P. Freret,” to wit: “ The mortgage in favor of "Theo. Lercom, act of O. de Armas, notary, dated October 26, 1870, to secure the sum of $6000, interests and costs, etc., recorded October 28, 1870.” Then another mortgage before Cuvillier, notary, in favor of Chas. Xafitte, for $8500, recorded May 4, 1872. There are, also, other antecedent mortgages and privileges certified to exist. These mortgages -are certified as having been granted not by the ancestor, as suggested by plaintiff’s counsel, but by the heirs, G. J. and rV. P. Freret.

Plaintiff’s suit, in which he attached the property in question, was not commenced till November, 1875,and his judgment and judicial mortgage were only registered November 29, 1875.

It appears, therefore, that there were operating and uncanceled upon this property two antecedent special mortgages granted by the seized debtors, and amounting to $14,500 principal. No adjudication could be made on a bid less than the amount of these prior special mortgages. C. P.

It is therefore ordered that our former decree remain undisturbed,

CONODBRING OPINION.

Egan, J.

I adhere to the views expressed in the original opinion in this case. I do not regard the manner of seizure and of appraisement adopted in this case as merely irregular. In my opinion, they were both "illegal, for the reasons stated in the original opinion, and under the facts therein stated, which are copied from the record. I concur in so much of the opinion now read as holds the sale in question bad, for the additional reason stated, that, even assuming the validity of the seizure, the price bid was less than the special mortgages resting upon the property. In preparing the first draft of the original opinion I had taken that view, also. After consultation it was omitted as unnecessary. I still adhere to that view of the case. The sheriff states that he seized and offered for sale the entire interest of the heirs in the succession, which interest he states is one undivided twenty-sixth interest to each of them (not in the succession) but in each of the following pieces of property — describing them as stated in the original opinion. This, it is admitted, was not true — an admission which is conclusive of the question that the heirs had not and could not have any such interest in the particular property which the sheriff professed to seize, appraise, and sell.

I concur in the decree affirming our former decree.  