The opinion of the court (Eustis, C. J., absent, and Slidell, J., dissenting,) was pronounced by
Rost, J.This Is an action of mortgage, in the case of the Bank of Louisiana v. Delery et al., 2d Ann. 648. The third opposition of the plaintiff in the present suit was dismissed, and he was left to his recourse in a direct action. We then held, that the probate sale made to affect a partition of the property, composing the community, which had existed between Sylvain Peyroux and the plaintiff’s mother, could not be set aside, unless the parties interested were made parties to the proceedings.
The plaintiff, subsequently, instituted an action of nullity against Sylvain Peyroux and his minor children, and obtained a judgment annulling three decrees of the court of probates, to wit: 1st. The decree appointing Sylvain Peyroux, as tutor of the plaintiff. 2d. The decree ordering the sale of the community property. 3dly. The decree homologating the account filed by Sylvain Peyroux, as tutor of the plaintiff, on the 1st April, 1846. The same judgment adjudged the defendant, Peyroux, to pay the plaintiff $24,539 04¿, with legal interest and mortgage.
This judgment is not conclusive upon the defendant, who being a party in interest, had no notice of the proceedings, and no opportunity to defend his rights. The plaintiff, taking this view of the law, has supported his judgment of revocation, by introducing in this suit the evidence upon which it was obtained; and we concur with the district judge, that he has satisfactorily proved the reality and amount of his claim, and that the appointment of Peyroux, as his tutor, and Castilloro, as his under-tutor, and al.l the family meetings held for his benefit, were null and void; but it does not follow, that the probate sale is also null and void for the same reasons. The plaintiff shows, for the first time in this suit, that he has renounced the community; he can, therefore, exercise no right as joint owner of a portion of it; he bases his action, exclusively, upon the ground that he is a mortgage creditor, and the nullities alleged, are not such as can avail creditors. As we said in the former case, they can be taken advantage of by the heir alone, in his capacity of heir, and may be cured by his ratification, expressed or implied, after he becomes of age. We consider that the renunciation of the plaintiff to the community, after he became of age, rendered the judicial sale of the community property valid. The renunciation of a community by the heir of the wife, has, like that of a succession, a retrospective effect; the heir of the wife who renounces the community, is considered as never having had any interest in it, and his portion belongs to the surviving partner in community, by force of his original title, jure non decrescendi. Pothier, traité de la Communauté, No. 568, 572, 578. Delvancourt, Leo. 4, tit. 1. Des contrát du marriage, sec. 5. Des suites de la dissolution dula communauté, p. 1. Note 2, page 28, (page 46, notes.)
The plaintiff never having had any right in the community, the surviving partner in his own right, and also as recipient of the share renounced, and as tutor of his minor children, had capacity to administer and sell the property of the community, so long as creditors did not object. See the case of Bryan v. Atchison, 2d Ann. 463.
This sale, however, has been annulled as fraudulent, contradictorily with Sylvain Peyroux; the judgment annulling it, has not been appealed from, and is conclusive against him, and all parties to the fraud it perpetrated. The participation of McCarthy find Barrett, and their combination with Sylvain Peyroux, to defraud *7the plaintiff and Peyroux's own children, are clearly shown; but there is not in the record sufficient evidence to impeach the good faith of Delery, so far as the slave, in controversy, is concerned. It has been urged, in argument, that after the sale to him by Barrett, this slave, and all the other property conveyed, remained in the possession of Peyroux ; that fact was susceptible of direct proof, and should not have been suffered to rest on remote inferences. The defendant, under his purchase from the bank, has required Delery's title, cannot be affected by the frauds of the purchasers at probate sale, and of the party to whom they sold. The only question, therefore, which the case presents, is, whether the legal mortgage existing in favor of the plaintiff on the community property, was entirely extinguished by the probate sale.
In the case of Sarapure v. Debuys, 6 N. S. 19, it was held, that a succession sale of the property of the husband, by virtue of an order of the court of probates, extinguishes all mortgages in favor of his heirs. But that a sale of the ' property of the surviving wife, made under the same order, does not produce that effect. In the case of Goice v. Poydras, 6 L. R. 283, it was decided that all mortgages created by the deceased, on his own property, were extinguished by a sale made under an order of the court of probates. We are not aware that the rule has ever been carried further, and, in a late case, we recognized the analogous principle, that where common property was sold to effect a partition, and purchased by a party having previously no interest in it, the legal mortgage existing upon it against one of the joint owners, continued in force.
The probate sale, in this case, was made in the succession of Mrs. Peyroux, and so far as the property sold was hers, there is no doubt that the mortgage existing in favor of the plaintiff was extinguished, but Sylvian Peyroux owned one-half of the property in his own right, and after the renunciation of the ' plaintiff to the community, he must be considered as the owner of one-sixth of the other half from the death óf his wife. Those seven-twelfths formed no part of the succession, and if the plaintiff had a legal mortgage on the property of Sylvain Peyroux, under the authority of the case of Sarapure v. Debuys, the sale of Peyroux's share of the community, under the. order of the court of probates, left it in full force.
Had the plaintiff a legal mortgage on the property of Sylvain Peyroux, and, if so, from what date?
It is true, that by marrying the plaintiff’s mother, he became the co-tutor of the minor in 1828, but as the tutrix was authorized by the judge, on the advice of a family meeting, to retain the tutorship, no mortgage attached on his property ; he became bound, in solido with his wife, for her faithful administration during the marriage, but the obligation was purely personal. 1 Delvan* court, notes to page 107.
In September, 1841, Peyroux caused himself to be appointed dative tutor of the plaintiff; on the 16th of that month, he took the oath and entered upon the discharge of the duties of tutor. It has been shown, that this appointment was illegal, and that he never gave bond; but this cannot prevent the legal mortgage in favor of the plaintiff from taking effect. ' Whether Peyroux was tutor, or acted as such without authority, the rule is the same. The mortgage took effect on the 16th of September, 1841, at latest, and is to continue to the settlement of the final account of the tutor. Civil Code, 3282, 3283. 2 Troplong Hyp., No. 428.
*8The entire amount claimed by the plaintiff, came to the possession of his mother after her second marriage. Peyroux was therefore bound, in solido with her, to account for it, being the debtor of the plaintiff at the time he commenced to act as his tutor; a legal mortgage attached to his property for the amount due.
It is urged, that the receipt of Peyroux to Canterelle, dated the 16th May, 1842, for $20,000, inherited by the plaintiff from his grand-mother, should have been excluded, on the ground that it is res inter alios acia, and further, because it was executed after the judicial sale of the property, under which judicial sale, and by mesne conveyances, the defendant claims title.
The grand-mother of the plaintiff died in 1839 ; the account of the administration of her succession, fixing the share of the plaintiff at the sum of $20,000, was homologated on the 11th of November of that year. This was during the lifetime of Mrs. Peyroux; the receipt given after her death ly Peyroux, was admissible to prove, that the amount, shown by other evidence to be due to the plaintiff, had been received, and as the mortgage against Peyroux takes date from the time he commenced to act as tutor, if not from the day of his appointment, the date of the receipt is not material; the presumption is, that the money was received long before it was given.
It is urged, that Peyroux, acting as tutor, has released the mortgage given by McCarthy, the purchaser at probate sale, and that, as to third persons, the release is valid, though the money was not paid. Kemp, tutrix, v. Rocoley et al., 2d Ann. 316.
Conceding that Peyroux might have raised that mortgage, so far as the succession of his wife was concerned, it is hardly necessary to say, that he could not then defeat a legal mortgage created, after the death of his wife, against himself individually, and that the plea that he has done so, is totally inadmissible as a defence. It is not shown, however, that he has attempted to raise that mortgage.
We are of opinion that the plaintiff has a mortgage on seven-twelfths of the property in controversy.
It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that seven-twelfths of the slave Crawford be seized and sold under the plaintiff’s mortgage, and that the proceeds of the sale, after deducting costs, be paid over to the plaintiff and credited on his judgment against Sylvain Peyroux. It is further ordered, that between the defendant and the warrantors, the case be remanded to await the sale of the slave under this decree, and then for further proceedings according to law; the costs of this portion of the appeal to be paid by the warrantors.