On Rehearing.
(Jan. 14, 1904.)
NICHOLLS, C. J.Plaintiffs and the defendants have both applied for and obtained a rehearing in this case. Plaintiffs on that portion of the judgment respecting the property described in the act of sale made on the 13th of November, 1806, before Octave De Armas, notary public, wherein John Devereux and Miss Louisa Harz were parties; the former appearing as vendor, and the latter as vendee, of the property therein sold.
The defendants on that part of the judgment which affirmed the judgment appealed from “to the extent that it decrees that lots 1, 2, 3, and 4, in question, belong to the community—also that defendants account for net revenue therefrom—which existed between plaintiffs’ father and the late Louisa Harz.”
We have re-examined the record, and see no reasons for altering our original opinion as prayed for in the application for rehearing made by the defendants.
The properties referred to were purchased during the marriage between Stephen M. Westmore and Louisa 1-Iarz. The law itself placed the ownership of the same presumptively in the community which existed between those parties.
There is no evidence in the record which would tend to show that the properties do not belong to that community, other than statements made by the husband in the acts of sale in which they were purchased. Defendants’ reliance is upon these declarations. If this action had been brought by Stephen M. Westmore himself, he would, under the jurisprudence of the state, have been estopped from denying the truthfulness of that which in the acts he declared to be the facts of the case; but this suit is not brought by *313Westmore himself, but by his son and his daughter. By reason of this relationship to him, they fall under the designation of his “forced heirs.” As to parties holding such relations to a deceased person, the estoppel which would have bound him has been released by the provisions of Act No. 5, p. 12, of 1884. So far as they are concerned, matters are thrown open to examination as to the real facts of the case, and the rights of parties are not made to rest upon the statements of the father. These rights are not necessarily rights affecting the legitime. The rules of evidence are relaxed in favor of the children, and they are granted a remedy which was denied the father. West v. His Creditors, 1 La. Ann. 365; Dunning v. West, 51 La. Ann. 622, 25 South. 306. The rights of third parties are not involved in this litigation.
We do not think that plaintiffs are entitled to a judgment decreeing the property which was conveyed in the act before De Armas, notary, to Louisa Harz, to have belonged to their father. The only parties to that act were Devereux, the vendor, and Louisa Harz, the vendee. Westmore nowhere appears in it. The contract which was created by that act was unquestionably a real one. Devereux intended to sell, and Miss Harz to buy, the property. She was of full age, and under no legal incapacity. It is claimed that at the moment the act of sale was executed she •was Westmore’s mistress, but the precise •date at which her relations with him as such commenced is not shown. Assuming that she was his mistress at that time, he certainly did not donate the property in question to her, for it was not his to donate to her. The property belonged to Devereux, and was transferred directly from him to Miss Harz. Scudder v. Howe, 44 La. Ann. 1103, 11 South. 824. If he donated anything to her, it was not the property but the $2,S78, the money with which she made the c-ash payment. Todd v. Larkin, 38 La. Ann. 674; Wolverton v. Stevenson, 52 La. Ann. 1153, 27 South. 674. The title itself passed to her when she made that payment, and when she executed simultaneously, as she did, her own notes for the balance of the price, secured by mortgage on the property. The title cannot be made to vest in West-more by parol evidence. Breaux’s Digest, p. 369, No. 2; Hoffmann v. Ackermann, 35 South. 295 ;1 Burg v. Rivera, 105 La. 146, 29 South. 482. The “title” to the property would not be affected by who would and who would not pay the after maturing notes.
If Westmore donated to her the moneys with which she made all the payments, and .there was anything subject to attack by his heirs, it was the donation to her of these moneys, and not the ownership of the property which she bought and paid for with the same. If her rights in that property could be reached through attacks of the heirs, it would be by indirection, and by way of consequence of their successful attacks upon the donations of money made to her. The mere fact itself that she may have been his mistress ’ when he gave her the $2,878 did not make that donation absolutely null and void, under article 1481 of the Civil Code. Westmore was at that time worth between forty and seventy-five thousand dollars. If this amount was more than he was entitled to donate under the then existing law and the then existing conditions, the donation was not nuli, but reducible. The donation would not have been absolutely null, under article 1491 of the Civil Code, as a “disguised donation to a person incapable of receiving.”
If a donation was made to her on that occasion, it was one made to her as a manual gift of money prior to the purchase, for she had the money in her possession at that time. There is no evidence of a donation of money having been made in her favor “through an interposed person,” nor of such a donation having been made to her “in the form of an onerous contract.”
Plaintiffs, still claiming ownership of this property itself, refer us to article 1752 of the Civil Code, to the effect that a man or woman who contracts a second or subsequent marriage, having children of a former one, can give to his wife (the second wife), or she to her husband (the second husband), only the least child’s portion, and that only as a usufruct, and in no case shall the portion of which the donee is to have the usufruct exceed the fifth part of the donor’s estate.
We are not called on to say whether this article would apply to a donation made to his mistress by a widower having children, *315as well as to a donation to his second wife, should he contract a second marriage.
It will be time enough to discuss that question when a case comes before us in which it is presented to us for decision. The only issue we have presently to decide is whether this particular property became, by its purchase, the property of Stephen M. Westmore, or whether it became by its purchase the property of Louisa Harz.
We are of the opinion, and so decide, that the ownership of that property vested by the purchase in Louisa Harz, and that, if the plaintiffs had or have any cause of action or right of attack against her by reason of donations made to her by their father, it is by reason of donations of money which he may have made to her. This cause of action and right of attack, if any they have, is expressly reserved to them, as is expressly reserved to the defendants all rights of defense which they may have in the premises. This was the scope of our original judgment on this branch of the case.
For the reasons herein assigned, it is ordered that our original judgment remain in full force and effect.
110 La. 1070.