FOUTELET ET AL vs. MURRELL, 9 La. 299

Bullard, J., delivered the opinion of the court. A petition for a re-hearing has been presented in this case, in which the counsel for the appellant is pleased to remark, that “ he cannot but believe, that owing to the intricacy of the record, the circumstance of the case having been argued by brief, and the long absence of the judge on whom the examination of the record devolved, some oversight has been committed, and the opinion of the court too hastily formed.” In this statement there are two errors, which we feel bound to notice. The judge alluded to was absent, by permission of the court, four judicial days.

Whether that be a long absence^ is a matter of opinion upon which persons might very honestly differ. The legislature, by statute, authorises the judges to be absent themselves occasionally, during ten days, and the statute does not require the previous . permission of the. bar. The other- error is in supposing that the examination of the record in this case devolved, exclusively, on the same member of the court. This intimation is wholly gratuitous. The record was repeatedly examined and read over by us all together, and considered with the most scrupulous anxiety to ascertain the truth.

As to matters of fact, it is not pretended that we committed any mistake. The case, in our opinion, turned upon the effect of certain acts of the plaintiffs,-which, it was contended by the defendant, amounted to a ratification of the proceedings had in relation to the property left by their mother.

The plaintiffs insist that these acts do not amount to a ratification, and are in themselves radically null: 1st, because there was nothing susceptible of ratification to which they referred; and 2-ndly, 'that they are null, because they amount to an agreement, or Traité, between the minors, after they had attained the age of majority, and their tutor, not preceded by a. rendition of accounts according to

article 355 of the Louisiana Code. I. The proceedings in 1817, in' relation to the estate, were that an inventory was taken, in which all the property in possession of .Foutelet, the father, at the death of his wife, was regarded as belonging to the community. The Court of Probates, on the advice of .a family meeting, and with the concurrence of the under tutors of the plaintiffs, adjudicated the whole property to the tutor, at the price of estimation; at the same time, there is what purports to be a liquidation of the community. The land, with the .improvements,' was estimated at three thousand dollars.

In the liquidation, the heirs of the wife are credited with the sum brought into marriage, as per contract; with “the amount of the Jand,” four hundred dollars; and with her -portion of her father’s estate, one thousand nine hundred and eighty-three dollars, and with one half the profits of the community.

This gave to the heirs, after deducting the debts from the common mass, the sum of four thousand seven hundred and forty-two dollars, making six hundred and seventy-seven dollars and thrée-sevenths' for each heir ; and the husband credits himself with three hundred dollars brought by him into marriage, and one half the profits, one thousand nine hundred and thirteen dollars, amounting to two thousand two hundred and thirteen dollars.

It is to be presumed, that the four hundred dollars represents the value of the land, independent of the improvements, and that the improvements belonged to the community, to wit: two thousand six hundred dollars. This appears to us a judicial proceeding, in which ‘the plaintiffs were represented by their under tutor, and, although, perhaps, clearly erroneous, certainly not so null, ipso jure, as not to be susceptible of ratification.

If, on arriving at the age of majority, the children found it most advantageous to adhere to that arrangement and liquidation, and to receive the six hundred and seventy-seven dollars, with interest at five per cent, from 1817, they had a right to do so. One of them, Paul or Hypolite, has done so in the most explicit terms. In the act signed by him in 1832, he says expressly, that he approves the account or liquidation of the 10th February, 1817, and the adjudication of the property to his father, and claims only the six hundred and seventy-seven dollars, with interest.

But it is urged, that although a minor who, having arrived at the age of majority, receives the price of property alienated irregularly by his tutor, is considered as having tacitly ratified the alienation, yet this court has never before decided that when he receives the price of only one half, he is considered as having ratified the sale of the whole. If the counsel had examined the record with more attention, he would have discovered that he had fallen into a manifest error in this particular.

In the liquidation of 1817, the father credits himself with no part of the land or slaves belonging exclusively'to his deceased wife. Her heirs are credited with the whole property inherited by her from her father, estimated in money, and that, instead of keeping one half of the value of the property in the inventory, he retains less than a third.

That there was error in the original settlement and adjudication we readily admit; but we do not see in what consists the error in the ratification by Paul Foutelet, referring,, as he does, expressly to the first proceedings, and approving the adjudication and the account rendered by his father. iiifoi’raalities anil relative nul-lities in the settle ment of successions, and disposition of property inherited by minors, must be taken advantage of by the minors themselves. As respects third persons, such transactions are ■valid until'set aside.

Where minor heirs claim a restitution’ in in-tegrwn, they are bound to place matters as they were before. If (bey claim the property in nature or in kind, they must refund the amount re-^raccmtnt onT The mortgage acquired by a third person on dotal or para-^Xuic^S-sed wife, after it is adjudicated by the Probate vivln^huSand) ngainstherheirs, fore" any act t aXdYhe^ju-dication. II. It is further contended, that the discharge of the father, by these acts on the part of the plaintiffs, without any previous rendition of account by the tutor, is null, according to

article 355 of the Louisiana Code. As an agreement by which the tutor is released from rendering any further account of his tutorship, it was perhaps null in the terms of that

article ; but what kind of nullity, whether ipso jure or only relative, is quite a different question. If absolutely and radically null, then it is null as relates to the tutor, as well as to the minor. But we do not consider this as belonging to that class of nullities. The father could not treat it as absolutely void; and, as respects third persons, it ought to be considered as valid until set aside. Such nullity was enacted for the benefit of the minor, and he is at liberty to avail himself of it, or not. If he claims a restitution in integrum, he is bound to place matters as they were before.

How can the plaintiffs retain what they have received, and yet claim the property of their mother in nature? 3 Duranton, No. 639. Merlin Repertoire, verbo Tutelle,

section 5. But the nest

article of the Civil Code (356) declares that the'action of the minor against his tutor, respecting the acts of tutorship, is prescribed by four years, to begin from the day of his majority. . Whether such prescription would apply to the receipts in question, we are not called on to decide, but the opinions of Duranton and Merlin incline that way. But, at any rate, we consider them binding in relation to third persons, until declared null in some proceeding between the parties. Being: acts of persons capable, of contracting, they r 1 ! 1 -IT must stand until avoided or rescinded.

Whilé this judicial proceeding, relating to the estate of Catharine Doublin, stood unreversed, without any knowledge ...... of latent errors, Murrell, the appellee, acquired his right, The mortgage to him was soon after followed by the discharge, signed by two of the heirs, and recorded in the office of the parish judge, and by the positive and explicit ratification of the other heir, Paul. These acts had not been rescinded as erroneous, when the judgment was rendered ,in'favor Murrell.

They were executed with a presumed notice of Murrell’s right already acquired, inasmuch as his mortgage was matter of public record;' and it would, in our opinion, be iniquitous to treat his mortgage as a nullity, upon the grounds assumed by the appellants. The re-hearing, for these reasons, is refused.