delivered the opinion of the court.
This is an hypothecary action, by which the plaintiffs sue for the sale of a lot, in the possession of the defendant, mortgaged by Gravier, the person under whom the defendant claims, as surety of Pomerat, the plaintiffs curator, against whom the defendants have obtained judgment.
The defence is two fold, i. e.
1. Pomerat, before he was curator of the plaintiffs, was executor of Lafon, who had left them a legacy of twenty-one thousand dollars, and had already wasted all his testator’s estate, when he assumed the curatorship, so that he never had any thing in his hands, as curator.
2. The defendant purchased the lot at a sale, in execution of a judgment obtained against Jean Gravier, by Jaques Gravier, and others, as coheirs with Jean Gravier, of *90Bertrand Gravier, had thereon a mortgage anterior to that which is now sought to be in-forced.
There was judgment for the defendant, and the plaintiffs appealed.
Jean Gravier, and J. Pomerat, who had been appointed executors of Lafon, took out letters testamentary, the former in October, 1820, and the latter in February, 1821.
In March, 1822, P. Lafon, the instituted heir, brought suit against the executors, for an account and payment, and in May following, Pomerat was appointed curator, ad bo«a, of the plaintiffs, and gave his bond accordingly, with Jean Gravier, his co-executor and his surety, who obtained a decree of the court of probates, by which, in order to avoid a general mortgage on all his property, he gave a special one on the lot, since purchased by the defendant
The constituted heir recovered judgment against the executors for upwards of twenty-nine thousand dollars, in April, 1824, and July, 1825, and on executions issued thereon, the sheriff returned no property of Pomerat’s could be found, and the property of Gravier that could be found, was insufficient.
A judgment against a curator is evidence against his surety;Fomerat having died in the meanwhile, the plaintiffs had a curator appointed to his absent heirs, against whom they directed a suit, in which they recovered a sum of four thousand five hundred and fifty-four dollars» and interest, which, for want of property of Pomerat’s, they now seek to enforce by the sale of the lots specially mortgaged by his surety.
It appears to us the district court erred.— The judgment obtained by the plaintiffs» against the heirs of their eurator, is evidence that he received moneys to its amount. The record shows Lafon’s estate was perfectly solvent, the whole of it came, or must have come to the hands of his executors, and Pom-erat, as one of them, was liable in solido with his co-executor, for whatever came to the hands of either—Civ. C. 248 a 177. Nothing shows the absolute insolvency of both Pom-erat and Gravier. On the appointment of the former as curator; they were both liable to the plaintiffs, and’there is positive evidence on the record that Gravier possessed property; particularly the lot which the defendant afterwards purchased.
2. The second point was not acted on by the district court, but it is equally untenable. *92It is alleged the premises were part of the estate of Bertrand Gravier, which descended to Jean Gravier and his brothers, and was allotted to Jean, in the partition of the estate.— No partition is produced.
Before the code of 1808, on a petition, co-heirs had no legal mortgage on property allotted to one of them.Gravier’s succession was opened in 1797, . which took place before the adoption of the _ Code of 1808, and must be regulated by the , laws then m vogue, The Parti. 6, 15, 9, required the jndge, on a partition against coheirs, ex officio to require them to give securely for the indemnification of such as might be evicted of their parts. This is negative evidence, that no mortgage existed; for otherwise., it would afford such a security, that no other should be required.
Further, there is no evidence of an eviction of any coheir, nor of any money to be returned by Jean Gravier, or others, to induce the tacit or legal mortgage given by the former. Code, 457, art. 23.
It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed, and that on default of the defendant to pay the plaintiffs the amount of their judgment, the premises be seized and sold to satisfy the same, with in-teresté and costs — the appellee paying costs in this court.