On Rehearing.
LAND, J.A rehearing was granted in this case as to Samuel Haas and John A. Haas, and as to Alexander Miller.
Plaintiff’s contention is that in the sale to Samuel 1-Iaas and John A. Haas the price paid was less than the real value of the property by one-fifth, and they claim the right under article 1981 of the Civil Code “to annul the contract and take back the property on paying the price or the value of the consideration, with interest.”
There is a dispute as to the total acreage of the plantation. Plaintiffs claim that as per deed the total area amounted to 880 acres, and as per assessment to 8C1 acres. Counsel for defendant contend that the total area on the face of the deed amounts to ■827.17 acres. The largest subdivision, consisting of a section, originally contained 650 acres, but 4 acres and a strip “350 feet wide running along the north line of said section” had been previously* sold.. The deed conveying this strip is not in the record. The second and third tracts are described in the deed as “containing one. hundred arpents, more or less.” It is evident that it would require a survey to determine with accuracy the total acreage of the whole plantation. The .importance of certainty as to total area is shown by the consideration that if we fix the average estimate of the witnesses as to value at $11.83 per acre, as was done in our former opinion, and assume the total *837area to be 863 acres, the total value would be $10,185.68, or only $134.43 over one-fifth more than the price paid. This small excess would disappear entirely if the total area be reduced by 11% acres.
As to the value per acre, we do not think that it can be satisfactorily ascertained by the purely mathematical process of dividing the total estimates of the witnesses by their number. Value is a matter of opinion, and the weight of opinion depends on knowledge of the property in question and of real estate values in the vicinity. •
, White, a witness for the plaintiffs, who had cultivated the Guillory plantation for several years, described the lowland, about ■one third of the whole' tract, as “very- poor land and poisoned with cane grass and wild rice,” and “sorrier” than other land about that neighborhood. He described the balance •of the place as good rice land, if water for irrigation could be obtained; there being no water supply on the premises.
Evariste Varine, another witness for the plaintiffs, described the low or marsh land as almost uncultivatable- owing to cane grass, and as fit only for pasturage.
Augelien Freige and Edward Dardeau, witnesses for defendant, corroborate the testimony of the foregoing witnesses as to the inferior quality of the marsh or rice land •on the Guillory plantation. They estimate the area of such land at 200 acres and its value at $5 or $6 per acre.
Several witnesses for plaintiff had never seen the Guillory plantation. Other witnesses knew the place in a general way, but do not seem to have known of the existence of this considerable area of inferior marsh land. Their estimates are based on the assumption that the Guillory place averaged in quality with other improved lands in that section of the parish. Witnesses who knew the actual conditions estimated the value of the tract as below the average. Thus Varine, while estimating good rice land at from $12 to $15 per acre, valued the Guillory tract at' from $8 to $12 per acre. Dardeau estimated the value of the whole tract at $8 per acre. Freige, a witness for both parties, estimated the high land at $10 per acre.
The price per deed of sale is a fraction under $10 per acre. We agree with the district judge that the evidence fails to show that this price was less by one-fifth than the real value of the tract at the time.
The motion to remand to enable plaintiffs to adduce evidence to show that the cash portion of the price was $1,000 and not $2,000,. as stated in the deed, is disposed of by the statement that plaintiffs knew of the existence of such alleged evidence before the trial in the district court, but were afraid to put the witness on the stand. We see no good reason to change our opinion as to the Haas transaction.
The trustee in bankruptcy was on his own petition made a party plaintiff, and was authorized by order of court to prosecute the suit to final judgment for the benefit of the bankrupt estate. Neither the capacity of the trustee nor his right to stand in judgment have been questioned. It is argued, however, by counsel for Miller, that the partnership alone was adjudged a bankrupt, and not the members as individuals, and that as Miller, under the bankrupt act of 1898, is entitled to be paid by preference over partnership creditors out of the net proceeds of the individual estate of O. Guillory, plaintiffs were not prejudiced by the payment of the note held by Miller out of the individual assets of the debtor. The answer to this contention is that the petition of the bankrupt shows that O. Guillory filed schedules of his individual debts and of his individual property. “Where a firm goes into bankruptcy, it is a proceeding against each and every member, and both the firm and individual assets must be administered in bankruptcy.” Collier on *839Bankruptcy, p. 60. Hence all rights of preference must be determined by the court having jurisdiction of the insolvency.
We shall now consider the transaction on its merits. Hiller is the son-in-law of O. Guillory. On December 7, 1904, Guillory and Miller proceeded by private conveyance from Eunice to Opelousas, a distance of 30 miles, and after their arrival Guillory on the same day and before the same notary sold his plantation to the Haases and his gin plant to Miller. The latter admits that he did not pay the price of $7,500 in cash, as recited in the act of sale, but testifies that he returned to his home at Eunice and on the same day paid the price to Guillory. Miller testified that he had the sum of $7,500 and more in cash in his house. At the time of the sale, Miller held the demand note of Guillory for $3,000, dated January. 18, 1904, bearing on its face no interest. This note was paid by Guillory on December 12, 1904, five days after the sale to Miller. On the next day, December 13th, O. Guillory & Co. wrote a circular letter to their creditors, announcing that the firm was unable to meet its obligations. This letter opens as follows:
“The recent slump in cotton caught us with a large lot of spots, which we were compelled to close out at an enormous loss.”
On January 5, 1905, the firm rendered a statement to their creditors, showing liabilities $18,609 and assets $6,645, and proposed a compromise settlement at 25 cents on the dollar. It is not shown that O. Guillory used $1 of the money realized from the sale to Miller to protect the spot cotton of the firm held on December 7, 1904, and it appears that said cotton was sold and the firm advised of the sale on or before December 13, 1904.
Miller was the sole witness adduced to explain and sustain this singular transaction • between him and his father-in-law. Miller’s testimony was taken under commission, and is very brief. His story may be epitomized as follows: On December 7, 1904, he went
with O. Guillory to Opelousas. Miller’s sole object in making the journey was to pay his taxes, and he happened to be present when Guillory offered to sell his gin plant to Sam Haas. Miller at once proposed to Mr. Haas to buy the gin plant in partnership, but the latter declined on the ground that his money was tied up. Guillory then said to Miller: “You buy it. You have the money.” Miller immediately accepted the proposition, but did not pay the cash then because his money was at home; but on the same day they returned, and Miller paid Guillory $7,500 in cash. Miller at the time held Guillory’s note for $3,000 for money loaned, but nevertheless paid him the price in full upon his statement that he needed all the money to keep his cotton until prices advanced. The note, however, was paid by Guillory within a few days without any demand on the part of Miller.
Considering the interest of Miller in the result of this litigation, his relationship to Guillory, the ordinary motives which actuate men under like circumstances, and the unexplained voluntary payment of the note a few days after the sale, and probably out of its proceeds, all tend to the conclusion that the transaction was an indirect preference of the son-in-law over other creditors by a disguised giving in payment. Miller knew at least that Guillory was selling out his individual property, and that Guillory & Co. were in danger of financial loss by the fall in the price of cotton. Under the circumstances ordinary prudence dictated that Miller should take steps to collect or secure the note, and at the same time Guillory naturally desired to protect his son-in-law.
The sudden purchase of the gin plant by Miller and the payment of the note five days: later were evidently parts of the same transaction, which cannot be rationally explained on any other hypothesis.
*841We therefore are of opinion that the transfer to Miller should be annulled to the extent of the amount of the note.
It is therefore ordered, adjudged, and decreed that the judgment appealed from, in so far as it dismisses the trustee’s suit against Alexander Miller, be annulled, avoided, and reversed; and it is now' ordered, adjudged, and decreed that the trustee, William J. Sandoz, have judgment against the said Alexander Miller, revoking and setting aside to the extent of $3,000 the sale made to him by Olivrel Guillory, as per notárial act of date December 7, 1904, duly recorded, and as described in plaintiff’s original petition in this suit; and it is further ordered that the property so conveyed be subjected to the payment of the judgment rendered herein in favor of said trustee to the extent of $3,000, and that the costs of suit iñ the district court be paid by Francois E. Savoie and Alexander Miller, except those incurred on the demand against the Haases, and that the costs of this appeal be paid by said trustee, the said Savoie, and the said Miller, one-third each; and it is finally ordered that our former decree herein, as thus amended, be reinstated and stand as the judgment of this court.
BREAUX, O. J., concurs in the decree.See dissenting opinion of PROVOSTY, J., 42 South. 336.
PER CURIAM.The court declines to entertain a second application for rehearing in this ease.