On Rehearing
FOURNET, Chief Justice.We have under reconsideration1 the judgment of the lower court ordering a partition by licitation at public sale of ten pieces of property in the city of New Orleans, owned in indivisión by the Succession of Barney Fertel with Rodney Fertel, Mrs. Nettie Fertel Warren, and Mrs. Annie Fer-tel Buhberg, wherein each of the properties *325was to be offered separately except items 5 and 6,2 which were to be first offered together, and then in combination with item 4,3 and the auctioneer was instructed to accept the higher of the aggregate bids by pareéis or the bid as a whole; the same procedure was to be followed in the case of items 7 and 8,4 these to be first offered separately and then together. From this judgment an appeal was perfected by David J. Pailet, the tutor of the minor heirs of the deceased Barney Fertel and also the administrator of the succession of his widow, Mrs. Fannie J. Pailet.
When the case was before us originally the majority view held, in effect, that the right is given the trial judge, under the provisions of Article 1336 of the LSA-Civil Code, to regulate the mode of sale as may appear to him most convenient and most advantageous to the co-owners; that the appellant, having failed to establish through expert testimony that the offering of the property first in separate parcels and then offering it in combination units of various parcels or en masse, with directions to the auctioneer to accept the higher of the separate bids by parcels or the bid as a whole, is detrimental to competitive bidding and disadvantageous to the co-owners, there is no valid basis for our holding that he abused his discretion. Moreover, this procedure was said to have been unanimously approved by the courts of other jurisdictions, which had considered the matter and not found it to be disadvantageous to the parties affected by the sale.
In his application for rehearing the appellant contends (1) that under our Revised Civil Code and the jurisprudence interpreting the same, discretion is granted the trial judge, first, in the matter of determining the method or manner of partition, i. e., whether it is to be in kind or by licitation, and if the latter, he is then given only the additional discretion to determine whether the sale is to be for cash or on credit; (2) that inasmuch as the only issue before the trial court, as reflected by the pleadings, ■was whether the partition was to be by licitation or in kind, the procedure ordered by ’the Court’s judgment was unanticipated, since there was in fact no evidence of any kind to support the advisability of such method of sale prior to the rendition of the lower court’s judgment; and (3) that the cited authorities from other jurisdictions are not controlling here in view of our spe*327cific codal provisions governing such matters, and in any event a review of the authorities relied on will show that they are not only inapposite from a factual and legal standpoint but announce an exception to the general rule, which is to the contrary.
The sole issue presented below was whether the partition was to be in kind or by licitation. The question of whether the property is divisible in kind, as contended by some of the defendants below, has passed out of the case and no complaint is made on that issue here, the only question now being whether the judge, in exercising his right “to regulate this mode [of effecting the partition] as may appear to him most convenient and most advantageous for the general interest” of the co-owners, Article 1336', LSA-Civil Code, had the right to order certain parcels to be offered first singly, and then en masse, with acceptance of the higher of the aggregate of the separate bids by parcels or the bid as a whole. An examination of the record discloses that no evidence at all was introduced on that subject during the trial of the case.5
It is to be observed that appellant has correctly stated the well-settled jurisprudence of this State, that while authorities from other jurisdictions are persuasive, they are never controlling when we have positive law on the subject. Moreover, a further examination reveals that (as contended by appellant) the authorities cited in our opinion an original hearing as sustaining the mode of sale decreed by the trial court were neither apposite from a factual and legal standpoint nor was the general rule quoted, which is to the effect that: “As a general rule, where real property susceptible of division is the subject of a judicial sale, it should, if practicable, be sold in parcels or lots, rather than en masse”, 31 Am.Jur., Judicial Sales, Sec. 81, p. 441; and “The most usual method, where the property to be sold is susceptible of division, is to offer it in parcels, * * * for the reason that it is to be supposed that the highest price will be realized by selling in this manner * * * ” SO C.J.S., Judicial Sales, § 20.
Under our civil law system, “No one can be compelled to hold property with another,” and except when the contrary has been agreed upon, any co-owner may demand the division of the thing held in common by the action of partition, Article 1289, LSA-Civil Code; and all rules established for the partitioning of succession property, with the exception of those which relate to collation, are applicable to partition between co-proprietors of the same thing. Article 1290. In Chapter 12, Section 3 of the Code, under the title “In What Manner the Judicial Partition is Made”, it *329is declared: “If * * * the heirs are not present, if there be among them minors or persons interdicted, or if all the heirs of age and present do not agree to the partition or on the manner of making it, it shall be made judicially and in the form hereinafter prescribed.” Article 1323. The partition is said to be judicial when “it is made by the authority of the court, and according to the formalities .prescribed by law.” Article 1294. Some of the formalities prescribed are that it “shall be preceded by an inventory, in which the effects to be divided shall be appraised, according to the form prescribed for public inventories”, 'Article 1324, which shall serve as the basis of the partition. Article 1325. “The action of partition and the contestations which may arise in the course of the proceedings, are to be brought before the judge of the place where the succession is opened * * *” Article 1327, or “before the judge of the place where the property to be divided is situated”, Article 1290, in the case of property held in common by several persons, some of whom are not involved in the succession, see, also, Article 1308. And in Article 1336 (the one relied on by the appellees) it is provided: “The judge who decides on a suit for a partition and on the mode of effecting it, has a right to regulate this mode as may appear to him most convenient and most advantageous for the general interest of the co-heirs, in conformity, nevertheless, with the following provisions.”
A study of Article 1336 in connection with other related articles of the Code will readily disclose the authority there conferred upon the judge is limited. The article plainly states that “The judge who decides on a suit for a partition and on the mode of effecting it,” that is, whether the partition is to be by licitation or in kind, “has a right to regulate this mode”; the clause following, “as may appear to him most convenient and most advantageous for the general interest of the co-heirs” is qualified by the provision “in conformity, nevertheless, with the following provisions.” An examination of the articles following, 1337 to 1346, both inclusive, in so far as they are pertinent here, will show that only three of them, Articles 1339, 1345 and 1346, are applicable. Article 1339 provides that “When the property is indivisible by its nature, or when it can not be conveniently divided, the judge shall order * * * on proof of either of these facts, that it be sold at public auction * * * and in the manner hereinafter prescribed.” (Emphasis supplied.) Under the provisions of Article 1345 the judge who has ordered the partition and thus regulated the manner in which it shall be made, “* * * shall refer the parties to the recorder of the parish or a notary appointed by him to continue the judicial partition to be made between them”, while Article 1346 simply authorizes the parties to a partition proceeding, if of age and present, to continue their partition amicably even though the judge has fixed the mode of making it.
*331Of the remaining articles, Article 1337 • gives the right to a co-heir to demand in kind his share of the movables and im- ' movables of the succession, except under : certain conditions, while Article 1338 treats of mortgage liens and privileges affecting the property to be partitioned, whether in kind or by judicial partition, and the manner or mode of giving effect to these rights. .'Article 1340 provides: “It is said that a • thing can not be conveniently divided, when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it”, and Article 1341 simply authorizes the judge to order the sale to be made on certain terms of credit and on proper security when the . effects of a succession are to be sold to effect a partition and the heirs of the deceased are absent, minors or interdicted (except when the payment of the debts requires'.that the sale be made for cash), while the next articles declare that any co-heir of age and present has the right (1) to demand and receive his share in cash, less 8%, . upon demanding that a portion of the . property be sold for cash, Article 1342, and (2) to become a purchaser of the hereditary effects to the amount of the portion owing to him from the succession, . Article 1343. This latter right is also given • to minor co-heirs, under certain conditions. Article 1344.
In view of the fact that the manner of conducting the sale directed by the district judge was never at issue in this case, and there is no evidence to support the same, the trial judge was clearly without authority to order the sale of the property in a manner other’than as listed in the inventory and suggested in the petition — all parcels forming distinct properties being listed therein as separate items.
The case of Kieran v. Lynch, 112 La. 555, 36 So. 588, 589, which is relied on by the appellees in this application for rehearing, does not support their contention that the majority opinion is correct, but rather supports the conclusions hereinabove reached. In that case certain city property which was to be sold to effect a partition had originally been two lots of about equal size, and the judge a quo ordered the property sold as two lots. In setting aside the judgment in so far as it directed the property to be sold separately instead of as one lot, this Court observed: “We find no justification for this in the evidence. The property is being held and used as one lot, and should be sold as such.”
.Counsel for the appellee argues that evidence should be considered which was introduced on the hearing before the trial court following the rendition of the judgment; that we should not close our eyes to this helpful testimony, but should follow the example of the Court of Appeal, Second Ciixuit, in the case of Valentine v. Southern Advance Bag & Paper Co., Inc., 20 So.2d 814, by taking note of the opinion of the real estate experts concerning the most advantageous procedure for the sale of this prop*333erty, and that this can be done without doing violence to appellant’s rights even though such testimony was taken after judgment and not before. This argument has no merit; the testimony was adduced for the sole purpose of fixing the amount of the appeal bond, and even then was admitted over appellant’s obj ection on the ground that the bond should be for costs only. And while this testimony would appear to be good cause for remanding the case, which we would readily do — particularly with respect to the joint sale of items 5 and 6, as it appears from the evidence in question that these two properties have complicated lease arrangements — nevertheless in as much as the appellees have requested that the case be not remanded even if we!do not agree with their views, we shall dispose finally of the matter.,- ,-
For the reasons assigned, the judgment appealed from is amended by decreeing that the taxes for the year during which the sale is made are to, be prorated between the respective purchasers and the vendors as of the date of the act of sale, all taxes accruing for the years prior thereto to be paid by the vendors; and by deleting therefrom that part which is hereby expressly reversed and annulled: “* * * except those properties in paragraphs S and 6 shall be offered together. Thereafter, property described in paragraph 4 with that described in paragraphs 5 and 6 shall be offered as a whole. The said auctioneer is directed and instructed to accept the higher of the aggregate of the separate bids by parcels or the bid as a whole, and to ad^ judicate same to the highest bidder or bidders, as the case may be. Likewise, he shall first offer separately those parcels of property described in the hereinabove paragraphs 7 and 8 and immediately thereafter offer them as a whole, and adjudicáte same to the higher of the aggregate of the .separate bids by parcels or as a whole,” and substituting therefor the words: “and adjudicated to the highest bidder.” In all other respects the judgment is affirmed.
HAMITER, Justice, suggesting a remand of the cause.Notwithstanding; appellees’ request to the contrary, and in view of the majority conclusion ' thát the testimony adduced in the trial court following rendition of the judgment cannot be considered by us (with which T find no fault), the cause should be remanded for the purpose of receiving that and other helpful evidence relating to the most advantageous procedure to be followed in the sale of the property — all pursuant to the provisions of' Code of Practice Article 906. This Article provides: “But if the court shall think it not possible to pronounce definitively on the cause, in the state in which it is, either because the parties have failed to adduce the necessary testimony, or because the inferior court refuse to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower court, with instructions *335as to the testimony which it shall receive, to the end that it may decide according to law.” (Italics mine.)
McCALEB, J., dissents adhering to the views expressed in the original opinion.. Inasmuch as the facts and the pleadings 1 ion, repetition here is not necessary. lave been given fully in the original opin-
. Item 5 bears municipal number 1036 Canal Street and has a frontage of 28.74 feet on Canal by a depth of 127.88 feet on S. Rampart, the back portion thereof being rented separately as municipal number 114 S. Rampart. Item 6 bears municipal number 118 S. Rampart and adjoins 114 S. Rampart; it has a frontage of 23.16 feet on S. Rampart by a depth of some 123 feet.
. This property at 1028 Canal Street adjoins 1036 Canal Street and has a similar depth, but a frontage on Canal of 57.5 feet.
. These properties adjoin on S. Rampart Street and bear municipal numbers 200-04-06-08-10.
. The only evidence that would throw some light on the subject was taken more than a month after rendition of the judgment, on a hearing to fix the amount of the appeal bond.