On the Merits.
One of the parties litigant in the suit for partition was a minor. As to him there could be no consent decree ordering the partition of the property by licitation — certainly so in the absence of the advice of a family meeting, duly homologated, recommending this course.
The property in question was not indivisible by its nature. The law, where minors are concerned, favors the partition of property in kind, and O. C. 1339 expressly lays it down that there must be proof before the judge that it is indivisible by its nature, or else that it cannot be conveniently divided in kind, before he is authorized to order its sale at auction to effect partition.
The rule was thus succinctly stated in Succession of Dumestre, 40 La. Ann. 575:—
“Before ordering a sale of property held in common by minors with majors, the court must be satisfied, either by the report of experts, or by satisfactory evidence, that the property cannot be divided in kind, for it is the policy of the law, in its jealousy for the protection of minors, that they should rather own real estate than that they should have money or securities, which would be by their nature more imperilled than if invested in such property.”
In the instant case, there was no proof, no evidence of any kind administered. The dec~ce rendered was predicated merely upon the averments of plaintiffs" petition and the admissions of defendant’s answer. These were not binding on the minor. As to him it was a consent decree.
Because the judgment begins with the usual formula, to-wit: — “the law and the evidence being in, favor of the plaintiff and against the defendant,” etc., the latter’s counsel argues that a presumption attaches the judgment was rendered on sufficient evidence adduced, and such, undoubtedly, would be the case were the clerk’s certificate appended to the record silent on the subject of evidence adduced. But where, as in this case, it recites that the transcript contains “all the *7evidence adduced,” and none whatever appears, no such presumption attaches.
This question was exhaustively considered, on full examination of all the authorities, in Harrison vs. Soulabere, 52 La. Ann. 707, and it was there held that where the clerk certifies to a transcript as containing all the evidence adduced upon the trial and yet no testimony or evidence of any kind is found in the record to support the judgment rendered, the same must be avoided and one of non-suit entered, or else the cause be remanded.
This judgment of partition is on the face of the record unwarranted by law, and there has been no valid sale of property thereunder.
Even purchasers of property must look not only to the jurisdiction of the court which ordered its sale, but also into the power of the court to render the order of sale.
Succession of Dumestre, 40 La. Ann. 574.
Succession of Palfrey, 9 La. Ann. 560.
Eor the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed and that the case be remanded to the court a qua to be proceeded with according to law — costs of appeal to be borne by defendant and appellee.
Provosty, J., dissents and reserves the right to file his reasons therefor. Mr. Justice Breaux:I thirds the appeal should be dismissed, the order of appeal dual in form and the bond given for two appeals cannot be considered as a sufficient bond in one appeal.