This case is accurately stated in our original opinion, wherein we held that, in the absence of fraud or injury, where property of a succession is sold to pay debts and is adjudicated for less than two-thirds of its appraised value, but for all it could reasonably be expected to bring at the time of the sale, the adjudication for less than two-thirds of the appraised value of the property was an informality that was curable by the prescription of five years. *Page 951
The opinion is based upon Thibodeaux v. Thibodeaux,112 La. 906, 36 So. 800; Lacroix v. Crane, 133 La. 233, 62 So. 657; Huckaby v. Huckaby et al., 134 La. 107, 63 So. 755, 756, which cases are in conflict with the doctrine announced in Succession of Hood, 33 La. Ann. 472, wherein the court said:
"We take the rule to be, that the property left by deceased persons, when ordered to be sold to pay debts, * * * can be legally sold for less than the appraisement thereof, but not for less than two-thirds thereof at the first offering."
In the Huckaby Case the court refers to the opinion in the Thibodeaux Case and says:
"According to the reasoning in that case, the question of `informality' vel non depends on the value of the property at the time and under the circumstances of the sale. If property be sold for less than two thirds of the appraisement, and less than its value at the time, the defect is one of substance. In such a case there is not only illegality but substantial injury. We adhere to this ruling as correct in principle, and as necessary for the protection of creditors, heirs, and all other persons interested in the administration of estates according to law."
It is an indisputable rule that the law allows that which it does not forbid; hence informalities and relative nullities committed in the conduct of sales of succession property to pay debts are cured by the prescription of five years, but the law which forbids the adjudication of succession property to pay debts, at its first offering, for less than two-thirds of its appraised value, has been interpreted in the Thibodeaux, Lacroix, and Huckaby Cases to exclude from its prohibitory *Page 952 provision such sales, where the property was adjudicated for all that it could have reasonably been expected to bring at the time of the sale. The burden of proving that fact is necessarily upon the party claiming under the adjudication, and this fact must be established by competent testimony.
It is the settled jurisprudence that the appraisement is the best evidence of the value of the property at the time of the sale. In this case one of the properties sold for less than one-third of its appraisement and the other for less than one-fourth thereof, and more than fifteen years thereafter it is sought to establish, by oral testimony and by sales of properties of the vicinity, at dates too remote from the sale of the properties involved in this suit to be of any material assistance in determining whether or not the properties were adjudicated for all they could reasonably have been expected to bring at the time of the sale.
This state of the proof and the fact that both properties were adjudicated for less than one-third of their appraised value has led us to the conclusion that the defect complained of is not an informality or relative nullity, but one of substance. Each adjudication, however, is a title, on its face, translative of property coupled with possession for more than ten years, and is, therefore, governed by the prescription of ten years acquirendi causa.
The record discloses that Dominique Arceneaux, one of the ten forced heirs of his deceased father, was an emancipated minor when this suit was filed, but he was not joined in the suit either as a plaintiff or otherwise. It appears that he attained his majority on *Page 953 April 26, 1932, and, under the law, he has one year thereafter within which to assert any interest he may have.
For the reasons stated, the original judgment is amended by avoiding the decree based upon the prescription of five years, and by now decreeing that the prescription of ten years acquirendi causa be maintained, and, as thus amended, that said judgment be reinstated and made the final judgment of the court, with right reserved to plaintiffs to apply for a second rehearing.
OVERTON, LAND, and ROGERS, JJ., are of the opinion that both pleas of prescription are good.
ODOM, J., concurs in the dissenting opinion of the CHIEF JUSTICE.