COONEY'S HEIRS vs. CLARK, 7 La. 156

Mathews, J., delivered the opinion of the court. This suit is brought to recover two slaves, named Nelson and Lucy, and described in the petition as the property of two" of the children of the plaintiff, who represents them'as natural tutrix. They claim as heirs to the succession of their deceased father. The defendant, in his answer, sets up title under a sheriff’s deed, which appears to have been made in pursuance of a sale by execution, wherein the property was seized as belonging to the mother, to satisfy a judgment which had been obtained against her by one Morris, &c.

The cause was submitted to a jury in the court below, whose verdict, although not clearly intelligible, appears to be the basis of the judgment of that court; from which the plaintiffs appealed. Where heirs slaves allotted to them in the par-ancestor’s estate, bai of 0partition is admissible m show title on the ants.°ftlie°laim a ^on heirs1 of property1 really esh°teSlnheritedt aithough not homologated m due time, which is oniy'provisionai! gives to each and good and property6 StUannuUed°or charged on (he t^osé°luterested of ^the^succeE sion.

The evidence of the case shows, that the slaves now in contest were, during his life-time, in the possession of the father of the plaintiffs, and were at his death left amongst tiie property of his succession. It does not appear that an inventory of his estate was ever regularly made, or that any partition of the community of acquests and gains presumed by law, was made at any time after the dissolution of the marriage by the death of the husband.

The entire property which was left by the husband, seems to have remained in an undivided state, in the possession of his widow and surviving partner, until the 25th of September, 1828; when a provisional partition took place between the plaintiffs and s*ster’ w^10 ’> the whole number of heirs of the deceased father being three. In the division which was ma(le °f the slaves, assumed to be the property of the succession of John Cooney, the ancestor of the appellants, the two . . . , . 1 L slaves m question fell to their lot; one to each of them.

The introduction of the proebs verbal of partition, was excepted to by the defendant; it was, however, admitted in evidence by the court below, and, we are of opinion, properly; but no effect was allowed to it,in the charge of the judge a quo ; to wk*ch an exception was taken by the counsel of the plaintiffs, It appears to us, that a just decision of the case depends mainly on the effect which ought to be given to this evidence title on the Part °f the appellants.

It does not purport to be a partition of the whole estate of the deceased, being in appearance confined to certain slaves specified by name, and appraised by experts appointed by the judge of probates of the parish, where the succession was opened, the ancestor having died intestate. The principal objections to it are informalities in the proceedings, and want of homologation in due time. It is true that the proceedings do not appear to be clothed with all the formalities, which probably are required by law to give absolute and conclusive effect to them as a final partition.

It was made in judicial form, between co-heirs, some of whom were minors, represented by their mother and tutrix; and if the property really belonged to the estate of their father, the partition thus made gave to each heir a separate title to the property by him partaken, good and valid until annulled, or changed by application of those interested in the property of the succession. See La. Code, arts. 1219 and 1438.

Property which belongs to the matrimooFiequelts^nd S!l.'ns may te seized and sold for the debts of p^tner after™! dissolution of the marriage by the death of one as the^eres/or j? wor is concerproceedings are J1**1 1jefore. the to make partíheirs.am°nS 6 The principles on which the cause seems to have been decided in the court below, are exhibited in the charge of ,. _ , . . the judge to the jury. One among them is, that the property in dispute belonged to the matrimonial community of acquests and sains, which existed between Mrs. Cooney and 17 111. . 1 . , 1 , . ~ her husband, at the time of his death.

The presumption of law is as assumed in the charge, and if no proceeding had taken place before the levy of the execution which issued . , . . , against the property of the surviving partner, her undivided interest presumed to exist, the slaves now sued for might have been legally seized and sold. This presumption, we are of opinion, is outweighed by the partition at which the presiuned part owner assisted, and thereby virtually acknifwledged the exclusive right to be in the succession of her husband, to the slaves which were divided and partaken as such.

Whether these proceedings may be annulled by creditors of tbe widow, alleging fraud, is a question which we are not called on to determine, in tbe present suit. According to the pleadings and evidence before us, we are of opinion that the plaintiffs have made out their title, and that the defendant has shown none.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court he annulled, and that the plaintiffs and appellants do recover from the defendant and appellee, the slaves Nelson and Lucy, named and described in their petition, and also the sum of one hundred dollars per year, as the value of the services of said slaves, from the institution of this suit until they shall be delivered up to the plaintiffs, &c.: and it is further ordered, adjudged and decreed, that the defendant and appellee do recover from Rowena Cooney, called in warranty, the sum of five hundred dollars, the price by him paid in consequence of the sale by the sheriff, with five per cent, interest thereon yearly until paid.

All costs of this suit to be paid by the warrantor, &c.