
    Emily R. Davis el al. v. John Davis et al.
    The heir who owes a debt to a succession is entitled to collate it, and cannot be sued for the debt without proof of the insolvency or indebtedness of the succession, and the necessity of his paying. C. C. 1214, 1271, 1272, 1265.
    APPEAL from the District Court of St. Landiy, Overton, J.
    
      Lewis and Porter, for the plaintiff,
    contended: The only question is, as to the right of the plaintiffs to sue before a final liquidation and settlement of the estate. Now, it is true, that art. 1265 L. C. provides, “ that an heir who purchases at the sale of the hereditary effects is not. obliged to pay the surplus of the purchase money until the portion coming to him be definitively fixed by a partition.” But to make this article of universal application to all cases of indebtedness on the part of those who may chance to be heirs, would place the effects of all successions entirely at the mercy of any dishonest person who happens to be heir to an estate; for it would be easy to suppose cases where, from the tardy process of our courts, the whole assets of an estate might be squandered by an unfaithful heir before it would be possible to obtain a definitive partition; and perhaps a stronger case could hardly be put than the one now before the court. But suppose the article to be universal in its application, does it forbid a judgment liquidating the claim ? Cannot a court pronounce on the validity of the claim, and suspend the execution of its judgment to await a partition among the heirs ? Shall I be compelled to stand by and suffer my debt to be prescribed, because the law provides that my co-heir shall not be obliged to pay until a partition is had ? Would not this doctrine forbid a judgment of partition itself?
    This article, with others, must, receive a reasonable construction, and we think the only fair construction is, that it confers a privilege of postponing the payment of any balance that may be due by an heir until a final partition; but it would be manifestly unjust to permit a faithless heir to taire advantage of this privilege to defeat the ultimate recovery of a just debt by a fraudulent transfer of his property. Thus we say, that we have a right, notwithstanding this provision of the code, even if applicable to this case, to have our claim liquidated by a judgment of the court, and further, to annul any contract made in fraud of our rights.
    This case should form an exception to the rule contained in the article under consideration. But should it not be considered an exception, this law has had a construction put upon it in the case of Rills v. Questo, 2 L. R. 250, where the learned judge well remarks, that “ whatever right the defendant may have on the estate, he cannot avail himself of it to avoid paying for the property he bought at the sale of the estate,” (“a fortiori,” a debt due to his deceased ancestor,) and adds, “ there may be debts of the deceased to pay, and the estate must be liquidated before any heir may claim any part of it.”
    But defendant refers to the case of Rachal v. Rachal’s Heirs, 10 L. R. 454. If that case has any application to the issues in this case, it sustains our action, because in this, as in that case, we are seeking a judgment for a sum of money in the hands of a third person, viz : the defendant; and, according to that case, we are entitled to a judgment each for his virile share as well as the defendant, who is also an heir, and the whole estate is sold and consists in a sum of money, and is not susceptible of partition, but is of division, to use almost the very language of the learned judge. Should the exceptions be sustained, and the plaintiffs defeated in their honest endeavors to secure the interest of the creditors and heirs of the estate, then we shall truly be placed in the unfortunate situation of creditors having claims undoubted and undisputed, yet unable to take any steps through the courts of the country to protect ourselves against the fraudulent misconduct of our debtor; and this, upon a rigid construction of a single article of the code, in its spirit (with this construction) contradictory to numerous other provisions of the same code intended to protect creditors against just such conduct as is complained of in this case.
    
      Swayze and Moore, for defendant,
    contended: If John Davis be an heir, he with the other heirs are undivided proprietors of the effects of the succession of their common ancestor, Major Davis, deceased; and if so, he is an undivided proprietor of the very claim for which plaintiffs are seeking to recover a judgment against him. Debts due to a succession form as much a part of that succession as land and slaves do. See L. C. 1214,1215, 1216, 1252, 1254, 1255, 1256, and 10 L. R. 454. If an heir owes the succession, the debt forms a part of the successional effects which forms the subject of partition. See L. C. 1271, 1272.
    An heir cannot be made to pay a debt due by him to the estate of his deceased ancestor, until a final partition has been made and the amount due by each heir definitively ascertained. How can the share of each heir be ascertained on the amount due by him definitively, until it is done by a partition effected in the mode pointed out by law ? Although an heir may be a debtor of an estate, the same heir may prove to be a creditor on final settlement, for his co-heirs may happen to owe, in the shape of advances, more than he. But the debts of the succession are unpaid, and its credits uncollected. How is the nett balance to be struck which is to be divided ? What claims presented against the estate will be allowed? What rejected? What amount of credits due the estate will proveto be good ? What bad ? Can the court go into the consideration of all these questions in this form of action? No! Because the parties that would be affected by it are not before the court. Or should the court make an approximate estimate in order to arrive at the nett balance ? For some result must be arrived at, either certain or uncertain. John Davis is an heir of the estate and, consequently, a creditor of Ms indebtedness to the estate. The qualities of debtor and creditor are united in the same person, which creates that confusion of right which extinguishes the two credits. John Davis is an undivided proprietor of the successional effects; he is sued as a debtor to that succession of which he is an heir, and is therefore made to sue himself, which is absurd.
    Again, if one heir has a right to sue his co-heir for a debt due a succession, the latter possesses an equal right. Would this not lead to that circuity of action and multiplicity of litigation which the law abhors? Would it not lead to a species of cross-firing which would, in the end, prove most disastrous to the combatants? What is the remedy? The lawgiver foresaw the evil consequences that would flow from that course of action in the enforcement of right by heirs, which the plaintiffs are now pursuing, and provided an effectual remedy in the action of partition. Each heir can resort to this remedy. No one can be compelled to hold property with another unless the contrary has been agreed upon. The heir who owes a debt to a succession may be made to collate it. L. C. 1275, 1276, 1277, 1278, 1305 and 1326.
    If, in the course of a partition, difficulties should arise, the proceedings are suspended and referred to the judge. By this means all controversies among heirs in relation to community property are finally settled by one suit. L. C. 1290, 1296 to 1299. The sums which each of the co-heirs owe to the deceased are divided. L. C. 1271 and 1272. The co-heirs to whom the collation is due, have a right to require and obtain an order that the property subject to the collation be a¡5praised, in order that it may be included among the effects to be divided for the sum at which it is appraised. L. C. 1257, 1276 and 1278.
    This suit is premature. If a judgment is rendered against the defendant Davis, itwould deprive him of a privilege accorded him by law. Now, ifthere be not sufficient effects in the succession to satisfy the heirs to whom the collation is due, the amount of the collation, or the balance of it, shall be paid them by the heir who owes the collation. This heir shall have one year to pay the sum thus due by him, if he furnish his co-heirs with his obligation payable at that time with ten per cent interest, and give a special mortgage to secure the payment thereof, either on the real estate subject to the collation, if it is in his possession, or in want thereof, on some other immovable property which may suit the co-heirs. See L. C. 1355 and 1356. It may however be urged, that these articles are not applicable to the case at bar, because the claim sued upon is not real property. But the result is the same, whether it be a credit or real property which is collated.
   The judgment of the court was pronounced by

Slidell, J.

This action is brought by Hannah Crosthwaile, as administratrix of the succession of Major Davis, and in her own right as his widow, and' by Emily Davis and others, children and heirs of the deceased, against John Davis, who is also a child and heir of the deceased, to recover from him a sum of about $1600. 'The claim is based upon two judgments obtained in Alabama by D. Gurley, for the use of Major Davis against John Davis. The prayer is, that the petitioners do recover and have final judgment against John Davis for the sum claimed. The petitioners also allege that John Davis had made a fraudulent and simulated sale of certain lands and slaves to A. G. Burrows, in order to defraud his creditors. They pray that Burrows be cited, "and that the sale be adjudged void. The petition contains no allegation that the succession of Major Davis is insolvent, nor that the share of John Davis in the succession, as heir of deceased, is not equal to the debt due by him.

To this proceeding the defendant’s excepted; the exception was maintained by the district judge, and the plaintiffs have appealed.

There is no error in the judgment. John Davis is himself an heir, and has, with the plaintiffs, his co-heirs, an undivided interest in the property of the succession. There is neither allegation nor proof that the succession is insolvent; and it may well be that, after payment of the debts of the succession, the share coming to the defendant may be larger than his indebtedness to the succession. The heir who owes a debt to the succession is entitled to collate it. As regards the action of Mrs. Orosihwaite, in her capacity of administratrix, there may be cases in which an administrator may sue an heir who is a debtor to the succession, and compel him to bring the money into court. But such a proceeding ought not to be permitted, where there is no suggestion nor proof of its necessity for the purpose of paying the debts of the succession. So far as we can form an opinion from the documentary and other evidence in the cause, more particularly the proces verbal of a succession sale and account of debts and assets prescribed by the former administrators, the succession is amply solvent, independently of the alleged amount due by the defendant, and will leave a large surplus for distribution among the heirs. See Civil Code, arts. 1214, 1271, 1272, 1265, &c. '

The claim to annul the sale to Burrows is incidental to and dependent upon the principal demand against the defendant, John Davis, andas the latter cannot be maintained, the former must be dismissed with it.

It is therefere decreed, that the judgment of the district court be affirmed, with costs.  