FOUTELET ET AL vs. MURRELL, 9 La. 291

Bullard J., delivered the opinion of the court. The appellee Murrell having recovered a judgment against Joseph and Godefroy Eoutelet and Emile Gourdault, took out an execution or order of seizure and sale, which was levied on a slave named Pierre, which had been mortgaged for the security of his debt.

Proceedings were stayed by injunction, at the suit of Paul Foutelet, Felonice Foutelet, wife of Emile Gourdault, and Rosalie Foutelet, wife of Pennier, on the groundsfirst, that the slave Pierrre is their exclusive property, as heirs of their deceased mother, Catharine Doublin, and secondly, that by a decree of the Court of Probates, the adjudication of him to their father and tutor, together with other property, as belonging to the community, had been declared null and void, and that the property had been ordered to be sold to effect a partition. ' In answer to the petition for injunction, the defendant plead a general denial, and further avers, that there was sufficient property to satisfy the claim of the plaintiffs, if any they,have, without interfering with his rights.

There was a verdict in favor of the defendant, and the injunction having been dissolved, the plaintiffs appealed. That Pierre was the property of Catharine Doublin, the mother of the plaintiffs, and wife of Joseph Foutelet their father, and formed a part of her paraphernal estate, is abundantly shown, and the question whether they have been divested of title, forms the principal difficulty in the case.

It appears that their father, after the death of their mother, caused the whole property to be inventoried, as belonging to the community, and to be adjudicated to him by the Court of Probates, at the price of appraisement.

He afterwards sold one undivided half of the land and slaves, and among the rest .Pierre to Godefroy Foutelet, his son, and Emile Gourdault, his son-in-law, and to one of the plaintiffs, Paul alias Hypolite Foutelet, then a minor, whom his brothers assumed to represent, but who, after arriving at the age of majority, disclaimed the purchase, preferring to claim his share in his mother’s estate, as established by the settlement in the Probate Court, in 1817.

It is contended, on the part of the defendant, that however erroneous the proceedings may have been, on the part of the father, in causing to be adjudicated to himself the property belonging exclusively to the heirs of his wife, yet the plaintiffs have ratified those acts, and received the price of that adjudication, and are thereby precluded. 8 Martin, N. S. 5, 18. 6 Louisiana Reports, 601.

The record furnishes us a copy of an authentic act, dated September, 26, 1832, by which it appears that Madame Pennier acknowledges that her father has rendered her an account of the estate of her mother, and that she is satisfied by the vouchers in support of the account, that the portion coming to her amounts to six hundred and seventy-seven dollars and three-sevenths, which sum she acknowledges to have received from her father, and she releases the mortgage in her favor, on his property resulting from his tutorship.

Another document in the record shows, that Madame Gourdault, another of the plaintiffs, about the same period, gave a similar receipt and discharge to her father. The other plaintiff, Paul alias Hypo-lite, at the same time that he repudiates the purchase made for him, declares that he intends to insist on his rights, as one of the heirs of Catharine Doublin, such as they are established in the account of the succession rendered on the 10th February, 1817, by his father, before the Court of Probates, his rights amounting to six hundred and seventy-seven dollars and three-sevenths.

He declares that he approves that account, and the adjudication of the property, on the same day, to his father, acknowledging that nothing more is coming to him than the above mentioned sum, for which, and the accruing interest, he has a mortgage ori all the property of his father, but which he restrains in its operation to the land and slaves in question.

The only difference between the three is, that the two first acknowledge to have received their share of their mother’s estate, and the last, (Paul,) although he has not received bis share expressly, ratifies the adjudication to his father, and contents himself with the amount shown to be due him on the basis of that settlement, secured by a legal mortgage on the land, and among'others of the slave Pierre.

A judgment obtained by the heirs of the deceased wife, against the surviving husband, annulling the adjudication of the property of the succession to him, on the ground that it was the wife’s exclusive property, and made through error, cannot affect purchasers and mortgagees of this property from the husband.

It is as to them res inter alios acta, Where the property of a succession is adjudicated to the surviving husband as common property,through error, (it being the wife’s exclusive property,) and this sale is ratified by the heirs, on having their respective shares of their deceased mother’s succession set off to them by the husband, any contract of mortgage he may make, will bindthisproperty in favor of third persons, who contract on the faith of these public acts.

But it is urged by the counsel for the appellants, that these receipts and acknowledgments were made in error, as well as the original adjudication, and ought not to prejudice them; and that in fact a judgment has been rendered in the Probate Court, annulling the whole proceedings and ordering á sale of all the property at public auction.

Whether these instruments, if produced on the trial of that case, would have concluded the present plaintiffs, we are not now called on to inquire; but it appears to us clear, that the rights of the defendant in this case, cannot be affected by that judgment, and we. must look at those instruments as if no such judgment had been rendered. It is as to him, res inter alios acta.

Whatever might be the opinion of this court, as to the validity, as between the original parties, of the adjudication founded in error, and as to the subsequent ratification, admitting that they were equally made in error, it must not be overlooked that Murrell acquired his rights under the faith of these acts, which were all of public record, and nothing shows that he was conusant of the alleged errors.

We are, therefore, of opinion, that in relation to the defendant Murrell, the plaintiffs are precluded, reserving, however, to Paul Foutelet his legal mortgage on the slave in question, in common with the other property of Joseph Foutelet. The existence of that prior mortgage, formed none of the grounds on which the injunction was obtained, and if it had, we have often ruled, that one hypothecary creditor has no right to arrest the proceedings instituted by another, against their common debtor, simply on the ground of priority.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.