MIERS vs. BETHANY, 9 La. 374

Bullard, J., delivered the opinion of the court. The plaintiff, as vendee of Mary Taylor, sues to recover a tract of land of two hundred and forty arpents, in possession of the defendant, to which she alleges title by inheritance, from her half brothers, John, William and James Higgins, and her mother Sarah Higgins. It appears that a tract of four hundred and eighty arpents, of which the land in dispute is a part, was granted to James Higgins. At his death, in 1800, his eldest son John inherited one-half, and the other half was retained by the widow.

Parole evidence of súch a distribution of the estate was received without opposition, and the present controversy relates only to the widow’s half. She had four children by her first husband, to wit: John, William, Nelly and James: She afterwards married John Taylor, by whom she had two children; Mary, Mrs. Bourgeois, and Hannah, Mrs. Blocker, It is left doubtful a4 whát time Nelly died without issue, nor is it material to inqUxi-e5 because if she died before her mother, the latter became her heir ; if afterwards, her full brothers inherited to the exclusion of her half sister.

On the death of Sarah Higgins, the mother, in 1807., she left five children^equally entitled to participate in her inheritance, viz: John, William and James Higgins, and Mary and Hannah Taylor. The sale of the minor,^by° his when°there1s”no ratification or concurrence of the minor, after till be^regarded as a nullity. The plaintiff has, therefore, shown a title in his vendor to one-fifth of the tract in dispute, by direct inheritance from Sarah Higgins, her mother, of which she does not appear ever to have divested herself.

John, William and James Higgins, the half brothers, died about the same time, in 1815; William survived his two brother, sand inherited whatever remained of their property, to the exclusion of the half sisters. On his death, the two half sisters inherited from him. The defendant has exhibited no conveyance from John, of his share, derived from his mother. William had already sold s^are to Freeland, who conveyed to the defendant. But the sale of Bohannon as curator of James, must be regarded ,,. .. , . , ° as a nullity; neither his concurrence nor subsequent rati.fi-cat‘oa shown.

We are of opinion, that the defendant has shown title to one hundred and forty-four arpents of the land in dispute; having acquired William’s full share of forty-eight arpents, Mrs. Blocker’s share also of forty-eight arpents, and one half of the shares of John and James, under the deed of Mrs. Blocker. The plaintiff is, therefore, as vendee of Mrs. Taylor, entitled to recover ninety-six arpents, or two undivided fifths of the land, to wit: forty-eight arpents in her own right by direct inheritance from her mother, and one-half of each of the shares of her half brothers, John and James, each twenty-four arpents.

But it is contended that Mrs. Blocker is not proved to be a legitimate child, and that consequently Mrs. Bourgeois inherited to her exclusion. It is shown that the two sisters divided between them the property left by the three Higgins in Attakapas, and we are of opinion, that the evidence does not authorise us to pronounce her incapable of inheriting, more especially as her legitimacy is not directly questioned by the pleadings.

The plea of prescription of tenyears’possession, under a just titleand sale, of minors’ property, will not avail, where the entire ten years have not elapsed since the minors came of full age, and before commencement of suit. The plea of prescription cannot, in our opinion, avail the defendant, as it is shown that the plaintiff’s vendor could not have been of age, until the year 1823 or 1824, and the present suit was instituted in 1830.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and it is further adjudged and decreed, that the plaintiff recover of the defendant two undivided fifths of the tract of land of two hundred and forty arpents in controvevsjr, with costs in both courts; reserving to the defendant his right, if any he have, to be paid for improvements.