On Rehearing.
LAND, J.We shall first consider the plea of res judicata filed by the defendant. .
In October, 1910, Ernest Clark sued for a partition of the lands in question, representing that he owned an undivided one-tenth interest therein, and that the other nine-tenths belonged to L. O. Williams, Mittie Williams, and John B. Files, and the minors, Early, Ruth, and James Williams. The said defendants accepted service of the petition and acknowledged citation. R. H. Harrell, tutor, signed for Early and James Williams, and Ruth Wells, born Williams, and Charles Wells, her husband, signed for themselves.
Defendants .answered, admitting plaintiffs’ co-ownership as alleged, but averred that it was not to the advantage of defendants that said property be partitioned either in kind or by licitation, and that the same should be held in indivisión by defendants in order that it might be developed as a whole for gas or oil.
Defendants further averred that they had entered into an advantageous mineral lease, covering their interest in said lands, and granting to the Sun Company the privilege •of exploiting said lands for gas and oil.
Defendant prayed that plaintiffs’ demand be rejected and that his suit be dismissed.
The partition suit was tried, and, “by reason of the law and the evidence being in favor of the plaintiffs and against the defendant,” judgment was rendered, recognizing that the parties to the suit were co-owners of the lands, sought to be partitioned in the following proportions:
One-tenth to Ernest Clark, two-twentieths to L. O. Williams, three-twentieths to Mittie Williams, three-twentieths to Early Williams, three-twentieths to Ruth Williams Wells, three-twentieths to James Williams, and one-fourth to John B. Files, and decreeing a partition in kind of the common property between the plaintiff- and the defendants. The judgment referred the parties to a certain notary to effect the partition.
*139The procés verbal of the notary recited that the lands were divided by the experts in ten equal portions or lots of equal value, and that Ernest Clark drew lot 1, and the defendants drew the remaining nine lots.
The partition thus made was homologated by a judgment of the court, of date October 22, 1910, rendered on a rule sued out by the plaintiff, Clark, to which all the defendants were made parties.
This judgment also recognized the defendants in the partition suit as the owners of the S. W. *4 of' N. W. Vi and N. W. % of S. W. % of section 10, township 21, range 16, less a certain described strip allotted to the plaintiff, Clark; and the defendants were also recognized as the owners of the E. % of N. W. % of the same section.
Plaintiffs in their petition ignored said partition proceedings and judgment rendered therein.
The position taken in our former opinion was that the proceedings were by consent, and that the judgment, in so far as it recognized the several interests of the defendants in the property, went entirely outside of the pleadings and contrary to them.
Plaintiff, Clark, prayed for a partition in kind of the property. The defendants resisted a partition of any kind, because of the mineral lease of the property to the Sun Company. The judgment was in favor of the plaintiff, and a partition in kind was ordered. A partition is the division of property among coheirs or co-owners, “according to their respective rights.” C. C. art. 1293.
We cannot perceive how a partition of any kind can be made without the judgment first determining the respective shares or portions of the co-owners. There must be as many lots as there are heirs or co-owners “entitled to a share,” and the lots must be drawn for. C. C. arts. 136A-1366.
The petition admitted that the defendants owned an undivided nine-tenths interest in the property, and defendants prayed, in the alternative, that said land be divided into lots of equal value, in order that one be partitioned to the plaintiff and that nine may be partitioned to respondents in indivisión. The judgment recognized the plaintiff and the defendants as the owners in indivisión of the tracts sought to be partitioned, m certain proportions, and ordered a partition of the same according to law. We think that the very nature of the suit in which minors were interested required the judge to fix the respective shares of the parties in the property to be partitioned. The drawing of the 9 lots as a whole by the defendants may have been an informality, but it was to their common interest' to hold them in indivisión during the existence of the lease to the Sun Company.
A few months later, oil was discovered in paying quantity on the premises. It is evident that, if the nine lots had been subdivided among the defendants, the discovery of oil on one of them would have inured solely to the advantage of the defendant who had drawn that particular lot. The formation of lots in a partition suit is not essential, where manifest injury would result to the parties. Succession of Aguillard, 13 La. Ann. 97. It appears that the Sun Company had acquired by the lease the exclusive right to exploit the premises for oil, gas, and other mineral, and the further right to have the lands partitioned in kind for the purpose of having the same developed for minerals.
The defendant, J. B. Files, was a party to the lease, which recited that he had acquired an interest in said lands.on account of professional services rendered in perfecting the lessors’ title to the same. Ten days later the lessors conveyed to said Files an undivided one-fourth interest in the leased premises, and.he was the record owner of said interest when the partition suit was instituted in October, 1910. The • original interest of *141the plaintiffs was one-fifth each, which was reduced to three-twentieths each by the sale to Files.
The judgment of partition, in fixing the proportions of the defendants in that proceeding, was in accord with the respective titles of the parties.
The judgment recites that it was rendered “by reason of the law and the evidence.” There is nothing on the face of the record to suggest that it was rendered by consent of parties. In a similar case this court said:
“The defendants cannot be heard to attack the judgment of partition collaterally. They can assail it only on the face of the proceedings. If, as claimed, it was rendered on insufficient evidence and in disregard of the forms prescribed by law, the error, if any, could have been revised on appeal only. [Taliaferro v. Steele] 14 La. Ann. 656; [Abbot v. Wilbur] 22 La. Ann. 371. The court was competent, the proceedings are by petition and answer, and the judgment is in proper form. The answers are not a confession. [Skinner v. Dameron] 5 Rob. 448; [Marbury v. Pace] 29 La. Ann. 558. They are signed by the defendants in proper persons. They purport neither to deny in or to admit any averment, but leave the whole matter to the determination of the court.” Bayhi v. Bayhi, 35 La. Ann. 527.
In Paul v. Lamothe, 36 La. Ann. 318, this court held that a final decree of partition, if attackable at all, can be attacked only in a direct action for its annulment. Even a consent judgment is binding between the parties, until reversed or annulled within the time prescribed by law. Greenwood v. City, 12 La. Ann. 426; Dunn v. Pipes, 20 La. Ann. 276.
Plaintiffs did not appeal from the decree of partition or from the judgment of homologation. They have not sued to rescind the partition for lesion or other cause. They have elected to ignore the partition proceedings and decrees as null and void. They must stand on this election.
In Hooke v. Hooke et al., 14 La. 23, the syllabus reads:
“An action for a partition, * * * in the court of probates, fixing the rank and portion of heirs, inheriting a succession, is res judicata when not appealed from, and no one of them can be deprived of his share in a subsequent suit.”
In that ease, Jane Browder, a minor, one of the defendants, was admitted to be one of the heirs in her mother’s half, and the decree of the court recognized her as such. The decree was never appealed from. In a further stage of the proceedings, several of the heirs attempted to contest the heirship of the minor and the community status of the property. The court held that the decree in favor of the minor formed res judicata between the parties, and “fixed their rights irrevocably.”
In. Choppin v. Bank et al., 47 La. Ann. 660, 17 South. 201, the plaintiff attacked a decree rendered in favor of the bank, in a partition suit to which he was a party. The court held that the plaintiff was concluded by the decree, and inter alia said:
“The defendants in that suit, the plaintiffs here, did not attack the title .of the bank. They chose.to defend on another ground. But none the less they are bound by the partition decree. That closed the controversy, so far as the bank’s title is concerned. If they could reopen that controversy to urge defenses such as they now present, there would be no end to litigation. * * * vVe think the partition suit called on defendants for all the defenses of which the case was susceptible.”
See, also, Wells v. Blackman, 121 La. 395, 46 South. 437, where it was held that plaintiff in a partition suit was concluded by the decree from setting up a further interest in the property. See, also, Scovell v. Heirs of Levy, 106 La. 122, 30 South. 322, affirming Choppin v. Bank, 47 La. Ann. 660, 17 South. 201.
Ownership being the basis of the action of partition, the question of title is necessarily involved. Thibodeaux v. Thibodeaux, 112 La. 911, 36 South. 800. In the case at bar the co-ownership of the defendants was admitted, but their respective interests were not set forth in the pleadings, but were fixed by the judgment, presumably on sufficient evidence. The determination of the “respective rights” *143of the parties was necessarily involved in the partition suit. O. O. art. 1293.
We conclude that the judgment of partition in question constitutes res judicata.
It is therefore ordered that our former decree herein be vacated, and that the judgment appealed from be affirmed; costs of appeal to be paid by the plaintiffs.
See dissenting opinion of PROVOST'S, J., 66 South. 755.