BROUSSARD vs. BERNARD ET ALS., 7 La. 216

Bullard J., delivered the opinion of the court. This case was before the court, at a former term: the judgment first rendered, was reversed, and the case remanded, in order to enable the parties, to exhibit certain evidence, of the existence of a custom. On the new trial, written evidence was produced, consisting of documents from the • archives of the parish of St. Martin, some of ancient and some of recent date, which satisfied the judge a quo, that the custom, of considering the "community as continuing, , .

J . ° after the death of one of the parties, until an inventory was made, was in existence in Attakapas, ánd that the Fuero Real was in force there, at the death of Madame Broussard, , as late as the year 1816. This court held, at that time, that the particular custom relied on, could only be proved by other partitions and divisions, which may have been made in the same place, and that it prevailed without interruption, upon the authority of Febrero, p. 2, lib. 1, chap. 4, § 4, No. 91. and 3 Martin, 120.

The evidence offered on the trial, and which is annexed to the record, consists of numerous inventories or extracts, from procés verbaux, by several successive commandants, on proceeding to take inventories, in which they make use of such expressions as the following: that they had proceeded to make an inventory with appraisement, &c. “afin defaire cesser la commmauté,” &c., or of similar import. There is no .1 evidence to satisfy us, that any succession has been settled and partaken, in conformity with such supposed custom. Nothing like a course of judicial acts, recognising such a custom, is shown.

The expressions embodied in the various inventories before us, amount to nothing more, in our opinion, than the usual style of notaries, which add nothing to the force ail(j effect of the act. An inventory without such enunciation of the purpose for which it was made, would not be less an inventory. A community of accpiests and ceases to exist at the moment of the death of one of the partners, with all the legal effects resulting from it. Each party is seized of one undivided half of the property composing the mass; and the» surviving party cannot alienate the shave not belonging to him.

If the survivor of a community of acquests and gains, continues to administer it without provoking a partition, and is tacitly permit led to enjoy the common estate, he will be considered, except in cases where he may haw. a legal usefriu-l, as inter-meddling, and ties will be those 'mstorWgOÜOrUm That a community of acquests and gains, as such, continues a:fter cl-eal-b of 0110 of the partners, with all the legal effects resulting from such a relation, with authority in the husband, if he should survive, to be still regarded as the head Q£ q;,e community, with" power to bind tb.o common property , , ,. by new contracts, and to alienate it without restraint, is a proposition so repugnant to all our notions of a community, and so subversive of first principles, that it cannot be for a moment admitted.

On the death of one of the spouses, the community, in a legal sense of the word, is unquestionably terminated. Each party is seized of one undivided half of the property, composing the mass, and the surviving party cannot validly alienate the share,, not belonging to him. If the survivor continues to administer, without making a partition, and is tacitly permitted to enjoy the common estate, he will be considered, except in cases where he may have a legal usufruct, as intermeddling, and his responsibilities will be those of a negotiorum gestor.

The object of the present suit, is to compel the defendants, to come to a final liquidation and settlement of the community, formerly existing between Michel Broussard and bis late wife, according to a decree, rendered by consent of all parties concerned, in 1820. The defendants in this case, who were plaintiffs in the first suit, seek to avoid the effect of that judgment, on the allegation, that it was rendered by consent, that gome 0f them were minors at the time, and some married t \ women, and that they were injured by said judgment, and are entitled now to restitution.

The action upon which the judgment was rendered, in 1820, was prosecuted by the present defendants, against Michel Broussard, and other persons, to whom he had conveyed, during the life-time of his wife, certain property, belonging to the existing community of acquests and gains. The principal object of that suit appears to have been, to annul that alienation, as made in fraud of his wife.

The purchasers, who were parties, pleaded among other things, that the right of action was prescribed; that a year had elapsed since the sale, and that in cases of alleged fraud, the revocatory action could not be maintained, after tbe expiration of one year. The judgment was finally entered by consent, annulling the. alienation, restoring the property to the community, and permitting the surviving husband to retain it as his own, on certain conditions. A • judgment rendered by a court of competent jurisdiction between parties legally before it, cannot be (questioned indirectly and collaterally.

Minors are bound by the judgments of courts of comJRtent jurisdiction, when they eomc before them properly represented, in the same manner as other persons. The Fureo lleni was not in force in Louisi. oua in 1816, If we take the whole judgment together, it is not easy to comprehend, how the present defendants have been aggrieved by it. Without that judgment, the whole property would yet belong to Isidore Broussard, or Landry, to whom it was conveyed, before the death of Madame Broussard.

It is said, that the consent of the husband, and of the tutors, amounted to an alienation of the property of the wife and minors. But it must not be overlooked, at the same time, that the same consent tended to acquire the same property, which without it, may have been irrevocably lost to them.

The decree rendered in the present case, sustains to a certain extent, the exception of the defendants, ami proceeds to set aside the first judgment, as founded in error of law, and prejudicial to the minors and married women, and condemns the plaintiff to pay about six thousand dollars, the estimated value, of the property in the inventory. It has been contended by tbe counsel for the appellant, that the first decree rendered by consent, if objectionable, was not absolutely null, but merely erroneous, and can only be avoided by action of nullity, or by appeal.

This court has held, that a judgment rendered by a court of competent jurisdiction, between parties legally before it, cannot be questioned indirectly and collatarally, and in a recent case, that minors properly represented, are equally bound; and tbe same doctrine was recognised in tbe case of Martin vs. Martin’s heirs. 5 Martin, N. S. 165. We are therefore of opinion, that the court erred, in declaring that the Fuero Real was in force in Louisiana., ai the death of Madame Broussard, and in setting aside the judgment heretofore rendered, and yet remaining unreversed.

While that judgment remains in full force, it ought to reguthe rights of their parties in the premises, leaving to R10se wh° were not of age at the time, their legal recourse, While a judgment remains in pea*edfrom,ntíié ties^are'^onciuded by it, leavderage «íeir™gal recourse. Property purhusband after the dissolution of the Community by the death of his «ofe ,beproper^-1-countable13 for one-haif of the riTCdeVfrom3 the ty Mterdie'deatb of his^ife^and making Ve^inventory. Before any final settlement of the community can be made, R is necessary to examine the substance and extent of that decree.

It begins by declaring, that the property which had been sold by Broussard to Isidore Broussard, and by the latter to Landry, belonged in full right and bona fide, to the parties jointly, the same, together with its natural fruits and increase, being a community betweén said Michel and the heirs and representatives of his wife.

It then proceeds to decree, that all the property mentioned in the deeds, shall be partaken and divided between the parties, the heirs taking their share in money, at certain times of credit, and the defendant retaining the property, at an appraisement to be made after-wards; and the sums coming to the heirs, being one-half of that estimation, after deducting the amount of debts due by the community, and which the defendant may have paid, after the death of his wife.

It is silent as to the revenues derived from the property, from January 25th, 1816, up to the time of the inventory. -It is Contended by the defendants, in their answer, that the property acquired by the plaintiff, after the death of his wife, belongs to the community. -We are of opinion, that it forms ® A 7 the" sole property of the plaintiff, but that he is accountable for one-half the net revenues, derived from the common' property, aRer death of his wife, and up . to the time the inventory was made, in November, 1820.

At that period, we consider his obligation to account for the revenues, to have ceased, because he was authorised to' consider the whole property as his own, oh paying interest, according to the judgment.

According to this' view of the right's of the parties, under the existing judgmeht, we are of opinion, thát thé final settlement and liquidátion of the community, ought to be effected as follows: first,' all the property mentioned in the inventory, in the possession of the plaintiff, at the price therein estimated ; second, crediting the plaintiff for all debts contracted before the death of his wife, and since paid by him, and thirdly, charging him with one-half of the net revenues, which the defendants may prove to be derived from the use of the common property, from the 25th January, 1816, till the 15th November, 1820.

As the judgment in question, related only to certain specific property, and it does not appear certain, that it was the only property belonging to the community, at the death of Madame Broussard, we are of opinion, that the defendants are not precluded from showing the existence of other joint property at that time, and that, in its partition, the defendants are not bound by the said judgment.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed; and it is further ordered, adjudged and decreed, that the parties proceed before the parish judge, of the parish of St. Martin, to the final settlement of the community, lately existing between Michel Broussard and Anastasie his wife, according to the principles expressed in this opinion, and that the defendants pay the costs of the appeal.