.. delivered the opinion of the court.
. . T H This case was before the court at the January term, 1832, on, a P^ea to ^ie jurisdiction of the District Court. The opinion then delivered, contains a sufficient statement of the * ., . . . allegations, on the part of the plaintiff. See 3 Louisiana Reports, 223. On the subsequent trial upon the merits, iudgment was rendered in favor of the plaintiff, for a part of J ° 1 1 her demand, and the defendants appealed.
It is shown beyond doubt, that Daniel Benoit, the common ancestor of the parties, was owner in his own right, before his second marriage, of a tract of land of about two hundred and fifty-five arpents. During his second marriage, he sold a Palt °f ^ for two thousand dollars, which was unpaid at the death of his second wife, and which in the settlement of the second community, went into the mass, instead of being reserved as the sole property of the husband. On his death the plaintiff would have been entitled to one-half. The _ , _ _ . , , . ... . , child of the second mamage, by these indirect means, certainly received a greater share than she was entitled to. The law contemplates a perfect equality among co-heirs, and each one r 1 . is bound to collate either really or fictitiously the advantages oenvea “om the ancestor to whose succession he is called, It is not pretended that Daniel Benoit, left any property to be partitioned among his heirs. Collation, it is true, is an incident of the action of partition, but the obligation to collate - * n . cannot be destroyed by the fact, that the ancestor had given *231away every thing in his life-time for the benefit of one of his children to the exclusion of the others.
Collation is an. incident of the action of partition ; butthe obligation to collate, cannot be destroyed by the fact that the ancestor had given away every thing in his lifetime to one of his children to the exclusion of the others. An heir who was not a party to the proceedings in the Probate Court, in the settlement of a succession in which she is interested, and her* right compromited, is notbound by them, and may maintain a separate action against her coheirs to recoven her lost rights. ■In addition to the plea to the jurisdiction of the District Court, which has already been disposed of, the defendant set up the prescription of five and of ten years. The right of the plaintiff did not attach until her father’s death, December 14th, 1825, and this suit was commenced by service of citation on the 15th October, 1830. Independently of other-suits, previously'brought and dismissed by the court in which they were instituted, it is clear there can be no ground for the plea of prescription, the present suit having been commenced within the five years after the death of Benoit, the father.
It is further urged, that the proceedings of the Probate Court, in relation to the settlement of the second community, must remain obligatory until set aside by direct action. It appears to us a sufficient answer to this objection, that the present plaintiff was a stranger to those proceedings. They were as to her res inter alios acta.
The appellee complains of the judgment below, 1st. because the court did not allow her one-half the value of the slave Tom, and 2d. because no interest was allowed her.
We are of opinion, that the evidence in the case did not authorise a judgment for half" the value of Tom, and the amount sued for was not liquidated, the plaintiff was not entitled to interest, from judicial demand.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.