This is a suit by the forced heirs of Thomas Walton, deceased, against John Jetus Walton and the heirs of his deceased wife, to recover 40 acres of land situated in Claiborne parish, and for a money judgment for the mineral lease value thereof and the value of certain royalties.
From a judgment rejecting plaintiffs’ demands at their cost, they have appealed.
The record discloses that A. MeCraine obtained a judgment against Thomas Walton, on December 21, 1904, for $359.74, with 8 per cent, interest thereon and 10 per cent, attorneys’ fees, subject to three credits totaling $128.04. About nine years thereafter MeCraine threatened execution of the judgment and the seizure of the land in controversy. At this time the sum due MeCraine on the judgment, including the accrued interest, was
John Jetus Walton paid the judgment, took physical possession of the property, and since that time he has exercised all of the rights of ownership thereof. It appears from the testimony that the price fixed in the act of sale was all that the property was worth at that date.
The prayer of plaintiffs’ petition with reference to the property is for a judgment decreeing the sale from Tom Walton to John Jetus Walton to be a simulation “and really intended by both parties thereto as a security contract.”
Thomas Walton died during the month of December, 1919, and from January 8, 1914, the date of the sale, until his death, be did not at any time question John Jetus Walton’s title and ownership of the property; neither did he assert during that time any claim thereto nor any interest therein. His failure to do so is more than significant because the lease of the property to Hamilton and the sale of one-half of the oil and gas beneath the surface of the property to Menefee & Eortson were executed by John Jetus Walton long before Thomas Walton’s death, and the sum realized by John Jetus Walton from these transactions exceeded the purchase price of the property.
The district judge in his well-reasoned opinion correctly says:
“If this was the suit of Tom Walton, instead of his heirs, against John Jetus Walton, the plaintiff would be barred from recovery under the' authority of Franklin v. Sewall, 110 La. 292, 34 South. 448.”
In the opinion from which we have quoted the Judge considered plaintiffs’ contention that under article 2239, O. C., the heirs of Thomas Walton are in a better position than he would be if he was living and had brought this suit, and he cites Hoffmann v. Ackerman, 110 La. 1070, 35 South. 293, in support of his conclusion that plaintiff’s contention is erroneous.
In the Hoffmann- Case the court announces the doctrine that, while heirs may introduce parol testimony to show that an agreement entered into by their ancestor, in fraud of their rights, is a simulation, the heirs cannot increase the succession of their ancestor by bringing into it property that had not been fraudulently transferred by him. In that case Mr. Justice Provosty, as the organ of the court, interprets article 2239, C. C.,. and says:
“There is a great and material difference between the right to introduce parol testimony to show fraud or simulation in the sale of immovable property or slaves by the ancestor, to the prejudice of the legitime of the forced heirr and the right to introduce parol testimony to-show title in the ancestor to such property for the purpose of increasing the amounts of assets belonging to his estate.”
The plaintiffs in this case are seeking to-show title in their ancestor to the property in dispute for the purpose of increasing the amount of assets belonging to Ms estate, and are relying principally upon oral testimony of a more or less doubtful character to establish that the sale from their ancestor to the-defendant was in reality a mortgage.
We are of the opinion that the doctrine announced in Hoffmann v. Ackerman must be overruled before they can be permitted to do this, and, as that doctrine should be adhered to rather than overruled, the judgment appealed from is correct, and it is therefore affirmed at appellant’s cost.