CASANOVA'S HEIRS vs. AVEGNO, 9 La. 192

Bullard, J., delivered the .opinion of the court. The leading facts in this case are sufficiently stated in the case of the Heirs of Casanova vs. Acosta et al., 1 Louisiana Reports, 179.

The plaintiffs, heirs of Casanova, having succeeded in that suit against their mother, in annulling the adjudication made to her by the Probate Court, of the property falsely represented to be common, when in truth it was the exclusive property of their father, brought the present action to recover one undivided half of three slaves, purchased by the defendant of their mother, after the adjudication to her, and to hold the whole subject to their legal mortgage, which mortgage had by the advice of a family meeting, and the authority of the Court of Probates, been released on all except certain specific property.

This last proceeding had also been annulled in the suit against the mother of the plaintiffs; but as the present defendant was not a party, that judgment must be considered as res inter alios acta. The defendant exhibits, as his title to the three slaves,

an act of sale from the widow of Casanova, together with the adjudication to her, of the same property, by the Court of Probates, and the solemn declaration in his last will, by the father of the plaintiffs, that all the property possessed by him belonged to the community. It is admitted in the petition, that the slaves in question were acquired by Casanova during the marriage, and consequently belonged to the community. As it relates to them, we cannot perceive how there was any fraud in the adjudication to the widow, at their appraised value.

One undivided half, belonged to the widow on her acceptance of the community, and she acquired, at least in relation to third persons, a good title to the other half, subject to the Legal mortgage in favor of the minor heirs, of whom she was tutrix. The only remaining question, therefore, is whether the accePtance of a special conventional mortgage by the Court of Probates, with the advice of a family meeting, in j¡eu 0f legal one, which affected the whole property of ° ’ . i i l the widow, liberated the slaves in dispute from such legal , , , ,, . , mortgage as relates to third persons.

Where certain slaves belonging to the community were adjudicated to the widow, the special conven-by'the'couu of the°'advice. of*» family meeting, gal one, which whofe^property of the widow, berate the slaves mortgage'asfe-lates to third persons and purchasers A person about to purchase property from a tutor, is bound the ri^htsTof the minors are secured. If he find them secured by gage^he^s'justi-fied in coneiu-ding that the general _ mort-the'm'in or s,°'i i a s ceased to oust, forms required by law for the validity of such a proceeding, appears to have been observed.

The sole ground of nullity is the alleged fraud, which consisted in representing the pi'°perty as common, and in the concealment of certain property, and the omission of any mention of it in the inventory. The defendant purchased under the faith of these judicial acts, not only without any knowledge of the alleged errors or fraud, but with a knowledge that the father of the plaintiffs in his testament had declared that tlie whole property belonged to the community.

Whether declaration alone on the part of the ancestor would . . . preclude the heir in relation to third persons Irom recovering, it is not necessary to decide; but, coupled with the fact which appears to us abundantly shown in the record, that the price paid for the slaves by the defendant was a debt due by the estate of Casanova, and that in effect the heirs received the price', by a liberation of that charge upon the estate, we consider the proceedings in relation to these slaves as binding on them. The plaintiffs excepted to a part of the charge of the judge t0 the jury, on the trial in the first instance.

The judge J . . .. ,. told the jury, that m his opinion, a person desirous of purchasing property from a tutor, is bound to inquire how the rights of the minors are secured ; if he find that these rights ° . ° are secured by a special mortgage, he is justified in concluding that the general mortgage in favor of the minors has ceased exist, especially when recurring to the Court of Probates, , , , ° ’ he finds that the special mortgage has been accepted by a family meeting and by the court; and that it is on the responsibility of the under tutor and family meeting, the special mortgage is accepted ; once accepted and recorded, the general mortgage resulting from the tutorship ceases to exist with regard to third persons.

This court fully concurs .... . . / . . with the court below on these points of law, and as the jury-found accordingly in favor of the defendant, the judgment must be affirmed. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.