delivered the opinion of the court. This is a suit against a third possessor by a forced heir, for two undivided thirds of a plantation and slaves, being the legitime or portion of which the deceased could not dispose. The plaintiff had judgment, and the defendant, warrantor appealed.
We think the suit was prematurely brought, the donee or legatee's property not having been first discu~s€d. This was a condition *508precedent under the former Code, 210, art. 37, and is so under the new, 1504.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled and reversed, and that there he judgment against the plaintiff and appellee, as in case of non-suit, with costs in both courts.