The judgment of the court was pronounced by
Rost, 'J.The plaintiffs are the legitimate children -of Marie Aspasie Vascocu, who-died -in 1824. After her death the property .held- in common between her and her husband, Jean Baptiste Vascocu, was adjudicated to the latter, at the price of appraisement, and ho gave a mortgage in favor of the minors on the real property thus adjudicated. He subsequently sold that property, and the title of the defendant is derived from that sale. Jean Baptiste Vascocu, died without having settled his wife’s succession, or satisfying the the claim of the plaintiffs. It is admitted that his .succession is .still unsettled* and has been accepted hy the plaintiffs under benefit of inventory. They notv call upon the defendant to pay them one-half of the amount of the adjudication of the community property, with legal interest from its date; and, in default thereof, they pray that the land held by him be seized and sold under their mortgage, to satisfy their claim. The defendant filed a general denial, called his vendors in warranty, and asked against them any judgment which might be rendered in favor of the plaintiffs against him. The warrantors appeared, and excepted to the plaintiffs’ action, on the ground that, it could not be maintained until the successions of their mother and of their father were finally settled. The court below having sustained the exception, dismissed tho petition, and the plaintiffs appealed.
There is no error in the judgment. Adjudications .of common property to the surviving parent are generally made without taking into consideration the charges of the succession of the deceased,.and their gross amount does not of itself make proof of the shares of the lieii’s ; but if it did, the father in this case is the warrantor of the defendant, as far as the assets left by him will go. His succession appears fully sufficient to pay the plaintiffs’ claim ; and if it is not, the only right of action they can have against the defendant is for the deficiency which may be found to exist on the final settlement of the succession ; that deficiency to be calculated on the capital only, as it is evident that the income of the minors was not sufficient for their support and maintainance. I-t is argued that the defendant, after filing a general denial,, could not ayail himself of the exception taken by the warrantors. We think otherwise. The objectof calling ■in warrantors is to let them take the defence of the suit. After their appearance the defence rests with them ; and their pleas will avail the defendant, unless'he objects-to them, and insists -on -defending the suit atbis peril and risk.
Judgment affirmed.