GROUNX ET ALS. f. p. c. vs. ABAT'S EXECUTORS, 7 La. 17

Bullard, J. delivered the opinion of the Court. The controversy in this case, grows out of a transaction or compromise, entered into between the minors Grounx, natural colored children of Jean Grounx, deceased, and the testamentary executors of Antoine Abat.

This compromise, made in pursuance of the advice of family meetings, on both sides, recites that Antoine Abat, having been in his life-time, successively, the attorney in fact of their natural father, dative executor of his last will, syndic of the creditors of their natural mother, Marie Adelaide, a f. w. c., and finally syndic of the creditors of Rosiliette Pradere, a debtor of their father; and difficulties having arisen on the part of the said natural children, touching the manner in which Abat had performed these different successive duties, and a law-suit, being about to be instituted by them, against said Abat, in his life-time, a projet of a transaction had been drawn up, in order to. terminate amicably, the differences existing between them, by which projet Abat was to retrocede to them certain property, anci slaves, which had been the property of their father.

Befóle this projet had ripened into a contract, by the final consent of the parties, Abat died. His executors then came forward, and with the advice of a family meeting, finally concluded the transaction on the 3d of October, 1832. It is therein ^stipulated, that the minors renounce every kind of reclamation, which they might have against the succession of Abat, on whatever account it maybe, and particularly on account of any want of formality or other, whatever, in the acts of the different administrations above mentioned.

The executors, on their part, transfer to the minors, a family of slaves, and a certain lot, and the improvements thereon, situated at the corner of the Bayou Road and Rampart-street.

The price of the slaves, is declared to be the sum of two thousand four hundred dollars, due to the said heirs of Grounx, by privilege according to the tableau of distribution made by Abat, as syndic' of the creditors of Marie Adelaide, their mother, for the share of those children, in the estate of their father, as appears by the executor’s account of his administration of that estate, which sum remaining in the hands of Abat, he had employed it in purchasing for them, the said family of slaves. They give a full and final acquittance and discharge of the sum thus due to them.

The price of the property on the Bayou Road and Rampart-street, is declared to be four thousand nine hundred dollars, payable in December following, and secured by mortgage. The parties finally declare, that in consideration of this transaction, they remain mutually released, from all demands and claims whatever, on whatever account they may he.

The price of the lot of ground, not being paid when it fell due, the executors of Abat obtained an order of seizure and sale, and the minors Grounx, represented by their under tutor, made opposition, and obtained an injunction, on the grounds, that the lot and appurtenances were, at the time of the transaction, already their own property, by virtue of a sale, made by their natural father to them, on the 21st of January, 1818, passed before a notary public; that there was, therefore, error in the transaction, as they could not purchase, what was already their own, and that no mention is made in the transaction of the deed above recited.

They conclude by a prayer that the property may be deemed to belong to them, in virtue of the act of sale of the 21st January, 1818, and that their tutor may be ordered, not to pay to the executors of Abat, any part of the price, and that the transaction may be declared null, so far as it relates to the sale of the aforesaid lot of land. In their answer to this petition, the executors of Abat admit the transaction, but deny that it was entered into in error, or procured by unlawful means.

They aver, that the act of the 2lst January, 1818, was well known to all parties, at the time the transaction took place, to be a perfect nullity. They set out several grounds, on which they aver it is null and void. 1st. That it wanted consideration, and was evidently a disguised donation. 2d. As a donation it contained conditions contrary to good morals. Sd. It was not recorded with the recorder of Mortgages. 4th. That it exceeded the disposable portion of the donor’s estate. 5th. That it was afterwards acknowledgedjand declared^by the donor, to be amere donation in his testament of the 5th October, 1819. 6th.

Because the natural father and mother, afterwards in 1821, by notarial act, declared said act to be feigned and simulated, and they expressly annulled and revoked it. 7th. Because the same property was afterwards inventoried, and sold by the Court of Probates, as a part of the succession of their natural father. 8th. Because in the settlement of said succession, the minors received their shares, of the price for which the property now claimed, was sold ; and 9th. Because the said minors were slaves, at the time of the pretended purchase and incapable of contracting.

Where colored persons have been treated with as free in a certain transaction or compromise, their freedom and capacity to enter into such an engagement, cannot after-wards be questioned by the other party with a view of avoiding the contract, on the ground that they were slaves; much less for the purpose of depriving them of the common privilege of all parties to a contract, i. e. that of contesting its validity on the score of error and fraud. The act of sale or donation, out of which this controversy has arisen, is in substance as follows.

Grounx, the natural father of the plaintiffs, acknowledges that he sells and conveys to Marie Adelaide, f. w. c. present and accepting as purchaser for her children by name, all minors under the age of puberty, the lot of land in question, for the price of five thousand dollars, which he acknowledges he has received out of the view of the notary and witnesses, renouncing the exception of non numerata pecuniti. He acknowledges that the children are his natural children, by the said Adelaide.

The usufruct of the property, is expressly reserved to Adelaide during her natural life, but it is stipulated, that at her decease, (.he property shall pass, of right to the said minors, to be by them holden jointly, or to be divided in equal portions among all the children of Adelaide, who shall have been duly acknowledged by'the vendor, at the time of his death. Two questions are presented by the pleadings for the consideration of the Court. 1st. Did the minors Grounx, acquire a title to the lot of land, by the contract above recited ? and 2d.

If so,has their title been divested by the sale of it, which was provoked by Abat, as a part of their father’s estate, by their claiming and receiving a part of the price, as testamentary heirs, in virtue of* a judicial decree, and finally by the transaction in question 1 We leave out of view, altogether, the question which is raised, touching the liberty of these minors.

Having treated with them as free, the representatives of Abat could not be received to question their capacity, with a view of avoiding the contract, as relates to the succession, much less for the purpose of depriving them of the common privilege of all parties to a contract, that of contesting its validity, on the ground of error or fraud. The view which the Court has taken of the second question, renders it unnecessary to decide, what rights were acquired by the minors, in virtue of the actof January, 1818.

Assuming, that on the death of their mother, they would have been entitled to the property as purchasers, or as donees, of their natural father, we come at once to the principal question in the cause, have they lost those rights by their own acts or consent, or are they precluded from enforcing them by any judgment of a Court of competent jurisdiction, which as to them, in relation to this property, has the authority of the thing adjudged 1 In 1821, Grounx, and Marie Adelaide, went before a notary and declared that the act above refereed to, was a simulation; that no price was paid, and that the vendor never intended to divest himself of his title, and they formally annul and cancel the contract.

It is hardly necessary to state so plain a proposition, as that the title acquired by the minors, could not legally be divested, by such

an act alone. Their mother had the capacity to acquire for her children, but she was incapable of annulling their title, by her mere consent. In the course of the same year, Grounx made his last will and testament, which after his death, in 1823, was ordered to be executed by the Court of Probates.

By this will, he acknowledges these same natural children by Adelaide, and declares, that, in order to provide for them the means of subsistence, according to the dictates of humanity, he bequeaths to them a moiety of all the property, moveable and immoveable, which he shall leave at his death, in ease his two sisters, whom he institutes as his heirs, or either of them should survive him ; but in the contrary case, he gives them three-fourths, and in either case, he gives his natural children the right of taking, if they think proper, at the estimated value, stated in the inventory, the lot with the house and other buildings and appurtenances, belonging lo Urn, situated at the corner of the Bayou Road and Rampart-street, the same property now in controversy.

The executors named in the will, declined to accept the charge, and Antoine Abat, was appointed dative executor. The lot above mentioned, was estimated in the inventory at five thousand dollars, and was sold at public sale, by the Register of Wills, for the sum of four thousand nine hundred and fifty dollars. According to the tableau, filed by the executors, the net proceeds of the estate amounted to four thousand eight hundred dollars, of which one-half appears to have been paid over to Marie Adelaide, as tutrix of their minor children, and the other half to the instituted heirs.

The tutrix consented to the final homologation of the account, and the account of the executors was finally approved and homologated, by a judgment of the Probate Court, “ as consented to by all parties concerned.” The executor is bound to admiluster on all the property of asucexpressly ^°deby the testatorto form a part of on eStaprop<ity advSsetiüe unless inhihited by tíiontytent aU" This is one of the administrations, the irregularities or informalities of which it was the object of the transaction between these parties to cure.

What were those irregularities and nullities, as relate to the minor legatees, and of which they had a right to complain 1 There occur to us, from an examination of the record only four: 1st. That the executor caused the lot in question to' be inventoried, as a part of the estate, and disregarded their title by the deed of 1818, of which he had knowledge. 2d. That they had a right to take the property at its estimated value, in part or in lieu of their legacy, by universal title. 3d. That it was sold for less than its appraised value, and 4th.

That the homologation of his account, was procured by the consent of their tutrix, and not pronounced contradictorily with them, jt js a sufficient answer to the first, that it was the duty of . the executor to maintain the will, and as the lot in question was expressly declared by the testator, to form a part of his estatej the executors could not avoid administering upon it as such, unless inhibited by competent authority. 2d. and 3d.

How could- the minors complain that the property had been s0^’ an(l they deprived of the privilege of retaining it, on account of their legacy at its appraised value i The very right to retain it under the will, implies necessarily, that the property belonged to the estate, and not to themselves. It is difficult to conceive, how they could claim,' as legatees under the will, without giving up their own pretensions, to the property, by an anterior conveyance.

The intention of the testator clearly was, to give them the disposable portion of his property, including, as a part of it, the lot of land and buildings, at the corner of the Bayou Road and Rampart-street. They cannot, at the same time, take their legacy and repudiate the will. Their tutrix acknowledges, that she had received for her children, the sum of two thousand four hundred dollars, one-half of the net proceeds of the estate, including the price of the lot in question. But it is objected 4thly, that the judgment of the Probate Court, approving the executor’s account, was rendered by consent of parties-.

Admitting that this judgment was not conclusive • that the minors might have been relieved against it, it is clearly provided for by the transaction. If the expression used in the transaction ; De quelque défaut de formalité ou autre, que ce soil dans les actes de ses diferentes administrationsf do not comprehend all the above enumerated acts or omissions, we are at a loss to know to what they do apply- Persons claiming as legatees under a will eannot set up title to property under an anterior sale and conveyance, which i s expressly delared in the will to form a part of the estate of the testator.

A transaction, entered into on the part of the minors, duly represented, and made according; to the forms of law, will cure defects in adjudgment whieíi v\ aa. not conclusive, and against which the minor-might otherwise-he relieved. But we come next to examine the administration of Abat, as syndic of the creditors of Marie Adelaide, the mother and tutrix of the plaintiffs. After she had received her children’s share in their father’s estate, she made a cessio bonorum.

Among her creditors, she enumerates her children, represented by Nicolas Monrose, as curator ad lites for one of them, and under tutor for the rest, for two thousand four hundred dollars, for their inheritance in the succession of their father, by tacit mortgage, from the 22d May, 1824.

The under tutor and one of the minors, personally assisted by his curator ad lites, appeared before the notary at the meeting of the creditors, swore to-their claim as above described, and voted for syndic- A tableau of distribution was afterwards filed by Abat, as syndic, a rule taken on the creditors, to show cause why it should not be homologated, and finally no cause having been shown, was homologated by judgment of the District Court- This judgment appears on the face of it, tobe binding on all the parties.

Where the curator ad bona of a minor above the age of pubert\', purchased property for the use ami in the name of his ward, at the sale of his father and mother’s estate, and during his minority, in an action of partition he is charged with his share of the estate thus purchased and received, by a judgment of the Probate Court: In an action to chase'as having fence jand con-lie wásprecluded ft® C(?uit so longos versed. minolvPproperty has been receivedby their tutor, and placed íihuibution of the tutor’s estate, -which is homo-judgment of the Pr°faate^pCourt, from, the mi-eluded fi-omPsettheSproperty itself so long^ as ¡mnuXofation ° subsists showing they have received the price.

The claim by the minors was necessarily composed, in part, of the price of the property, to which they now set up title, and which had been received by their tutrix from the executor of their father’s will. It rests on the hypothesis, that the lot remained the property of their father, that it was disposed of by his will; that they acquiesced in the will and its execution, by receiving their legacy, representing one-half of the the estate in money; and It appears to the Court, wholly inconsistent with the pretensions of the plaintiffs to claim the lot in controversy. In-the case of Martin vs.

Martin’s heirs, et als., the plaintiff was a minor over the age of puberty. ' His curator, ad bona, without his concurrence, purchased real estate and slaves, at the sale of his father and mother’s estate in his name, on account of his share in,the estate. During his minority, in an action of partition, in which he was represented by a curator ad lites, he was by judgment of the Probate Court, charged with his share of the estate thus received by his curator ad bona. He afterwards sued to set aside the purchase, as having been made without his concurrence and consent.

But this Court held that he was precluded by the judgment of the Probate Court, so long as that judgment stood unreversed. 5 Martin, N. S. 165. That case is strongly analogous to this, and we think the same principle will apply. While the judgment of homologa^on subsists, showing that they had received the price of the property in question, as a part of their ■ father’s estate, the L . J 1 _ _ , 1 . 3 minors are precluded irom setting up a title to it as their own.

This is indeed a much stronger case than the one quoted, because in that case, the Probate Court would have been ... without jurisdiction to decide on the authority of the curator ad bona, to purchase for his ward, if that question had been brought directly before it, and in this the District Court having general jurisdiction, was competent, in whatever shape the question may have been presented.

Thus far we have examined this question, in a great measure independently of the transaction or compromise, we have considered the rights of the parties in relation to the property, mainly according to the evidence relating to the different administrations of Abat, sanctioned by judicial authority. We have looked at it, as if no such transaction existed, and this suit had been brought directly for the properl ty, under the title of January, 1818. Let us examine how the matter stands under the compromise, and whether such error has been shown, as will vitiate the contract.

Transactions have between the parties the authority of the thing adjudged.

And where the parties compromise generally on all diffcrences, the titles which are unknown and afterwards discovered, are not °™s?. fo1' scmding the transaction, unberai ^oLeaied oUthe^arües0"0 And -where the U™ici.ation °f demands in an mLs°L traXcexpiill/anVno mention is made Lrtainproperty transaction11 but n0 . cadence tlar^as^conpose by the pat-V» ül? transaetion will not be rescinded, Transactions according to the Code, have, between the parties, a force equal to the authority of the thing adjudged, and when the parties have compromised,' generally on all differences which they might have had with one another, the titles which they know nothing of, and which were afterwards discovered, are not a cause of rescinding the transaction, unless they have been kept concealed on purpose, by the act of one of the parties.

La. Code, arts. 3045 and 3050. The renunciation of all claims and demands in this act of . . » _ ill compromise, is as general as words could well make it, and there is no evidence that the latent title of 1818, was concealed on purpose, by tbe executors of Abat. It has been said, that it was not taken into view at all. Admit that it was not.

Still it is certain, that the parties had in view, the administration of Abat, as executor of Grounx, and as syndic of the creditors of Marie Adelaide, and it must have been known to both parties, that the property now claimed, had been sold by the executor, as a part of the estate. There is one clause in the transaction, not a little remarkable, and which seems to us conclusive. The price of the slaves conveyed by the executors of Abat, is declared to be two thousand four hundred dollars, “ due by privilege to said minors Grounx, according to the tableau, of distribution, deposited in the District Court, by Mr.

Abat, as syndic of the creditors of Marie Adelaide „ . , . ’ for the share coming to said heirs, m the succession of their father, as appears by the account of said succession, rendered by Mr. Abat, before the Court of Probates, which sum had been received by said Marie Adelaide Grounx, in her capacity of tutrix, according to her receipt in the Court of Probates.” They go on to admit, that this sum had been employed in the purchase of the family of slaves, and they give a full and final acquittance.

This sum formed in part the price of the property now claimed, and after recovering the price, they cannot claim the thing. Judgments rendered by courts of competent jurisdiction against minors duly and legally represented, so long as they are not reversed or declared to be null, have the same force and validity as if the parties were of lull age. in an appeal where security is given merely and expressly for tíoifóf theCjudgnot"1 suspended thereby. it is but merely a del voiutive appeal. An injunction tbelncfplfon of the suit, cannot with the^ppeai the same1 sSt oil appeal.

Judgments rendered by Courts of competent jurisdiction, against minors, duly and legally represented, so long as they are not reversed or declared to be null, have the same force and validity as if the parties were both of full age.

In the case before the Court, the judgment homologating the tableau in the concurso of Marie Adelaide, and that approving the account rendered by Abat as exeeutor of Grounx, rest on the hypothesis, that the property in dispute, formed a part of the succession of Grounx, of which one-half was bequeathed to the plaintiffs, and it was adjudged, that they should receive one-half of the price in lieu of their legacy.

The subsequent transaction adopted the same hypothesis, confirms the former judgments, cures all the irregularities and nullities in ,J . . . 0 the administration of the estate, and has, as to all those matters, the authority in itself of the thing adjudged. Upon the question, whether this appeal should be considered as suspensive, or merely devolutive, we agree with the judge tí quo, that security having been given, merely and eXpressly for costs, the execution of the judgment below, was not suspended by the appeal. Tire injunction bond, given at iuception of the suit, cannot be cumulated with the appeal bond.

The conditions of the two bonds, are essentially different. The security on the injunction bond, is not bound for any Part ^le judgment to be rendered on the appeal, except for damages ; be is liable only for such damages as the party may have sustained, if it should appear that the injunction was wrongfully obtained. ■ It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court, be affirmed with costs.