(with whom concurred Buchanan, J.,) dissenting. The plaintiffs, who are the forced heirs of Antoine Dupuy, deceased, demand the nullity of an act of sale from their ancestor to Jacques N. Dupont and his wife, Irma Dupuy, their co-heir, on the ground, as alleged in their petition, “that the said sale was simulated and merely intended to favor, contrary to law, the said Irma Dupuy, to the detriment of your petitioners, the said sale being fraudulent, as never having been accompanied by possession, or even assessed in the name of the said Dupont and wife, he, the said Dupont, being interposed for the benefit of his wife.”
By giving to the above allegations the utmost latitude of construction, it will appear that the plaintiffs base their action on the following grounds:
1st. That the act of sale, beingasimulation, is an absolute nullity, the estate of Antoine Dupuy deceased being still the real owner of the property in controversy.
*2292d. That the sale is a disguised, or an indirect donation to their co-heir, Irma Dupuy, through the interposition of her husband, to their detriment as co-heirs, and in violation of their rights to the legitime.
Their action has a three-fold character, being, firstly, an action “en declaration de simulationsecondly, an action to set aside a disguised, or indirect donation in violation of their legitime; and thirdly, an action to set aside a sale, containing an advantage or extra portion in favor of Irma Dupuy.
I. The action en declaration de simulation may be instituted by the parties to the act, and their heirs and legal representatives, as well ashy third persons, with this distinction, however, that the latter are allowed to have recourse to parol evidence to contradict the authentic act, whilst the former are precluded from the exercise of this right. Heirs, except when suing to recover their legitime, stand in the same situation, and enjoy the same and no other rights than those which are hold by their ancestor. But when they sue for the recovery of their legitime, they are considered as third persons or creditors. This difference is the result of the recognized distinction in our jurisprudence between the general rights of heirs and their rights to the legitime, the one being derived from the ancestor and the other from the law. In the case of Rachel v. Rachel, 4th Ann., 501, the courf said r “The action of forced heirs, in which the sale from a parent to his children is attacked as a disguised donation, is not derived from the ancestor, but from the law. So far as their legitime is concerned, they are not heirs but creditors.” Hence, in the action “en declaration de simulation,” independently of their rights to the legitime, the rights of heirs must be regulated by the rules which would have applied to a similar action on the part of the ancestor. The act of sale from Antoine Dupuy, deceased, to the defendants stands unimpeached by any counter-letter, and the plaintiffs have not thought proper to probe the conscience of the defendants; but they urge that the sale, never having been accompanied by possession or delivery, is presumed by law to be simulated. C. 0. 2456. The presumption of simulation established by this Article of the Code, is inoperative with respect to the parties to the act, for the Article provides: “In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and, with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.” Inasmuch, therefore, as the plaintiffs claim as heirs from their ancestors in this branch of the case, so far they cannot be viewed as third persons, and benefit by this presumption of law so as to throw the burden of proof on the vendees. The balance of the evidence being parol is unavailable to the plaintiffs to establish the alleged simulation, in so far as their legal rights as forced heirs are not concerned.
II. The second ground of nullity is, that the sale covers a disguised or indirect donation to Irma Dupuy, through the interposition of her husband, to the detriment of the plaintiff’s legitime. It is important not to lose sight of the distinction which exists between a disguised donation and an indirect donation. The latter is one which is based upon a real contract, and is an advantage conferred upon the other contracting party, under color of a real contract for the whole; whilst a disguised donation, whether it assumes the form of a direct sale to the party to be benefited, or of a sale to an interposed person, is wholly a simulation. The indirect donation is, therefore, a real contract, with the ex-*230cepfcion of the advantage indirectly conferred; but the disguised donation is a simulated contract. 6 An. 673. Let us consider what would be the effect of an indirect or disguised donation to a stranger. Should such an advantage he extended to any person but a co-heir, without prejudice to the légitime, the act, though clothed with the form of a sale, would, however, be valid as a donation. But should the légitime be impaired by such a disposition of his property by the ancestor, then the donation, whether disguised or indirect, would be subject to reduction. Whenever such an advantage is conferred upon a co-heir, besides the right of reduction, the other co-heirs are entitled, in the cases pointed out by law, to demand its collation, hut this will be considered in its place. There being no law prohibiting a parent from donating property to one of his children, or even a stranger, apart from the légitime, it follows that a disguised, or indirect donation in such cases cannot be considered as void, but merely reducible according to circumstances. However, in cases where such advantages are made to incapable persons, another distinction prevails: the disguised donation is affected with absolute nullity, and the indirect donation is simply reducible. In the case of Thibodaux, 6 An. 673, the court observed that Art. 1747 of the Civil Code contains two separate dispositions: one by which the spouses are incapacitated from giving to each other more than the law permits, in which case the excessive donation is reducible: and the other declaring null and void all donations disguised or made to persons interposed. This distinction of reducible donations between husband and wife, and donations which are null and void on the ground of interposition or disguise, came to us from the Roman law. See Digest, book 24, title 1, law 5, paragraph 6; Pothier, Donations entre Mari et Femme, No. 78.
It was recognized by the late Supreme Court in the case of Casanova’s heirs v. Acosta et al., 1 L. R. 185. It was also recognized by the French Commentators under a similar disposition of the Code of France. 5 Toullier, Nos. 76, 83, 901, 902.
The allegation in the plaintiff’s petition that Dupont is an interposed person for the benefit of his wife, does not deserve serious consideration, because the act of sale was passed to both the husband and wife. On the hypothesis that the sale is a disguised donation to the prejudice of the plaintiffs’ légitime, it appears to mo that the proper remedy would be for them to sue for a reduction, instead of the nullity of the sale, in the absence of any legal objection to the vendor’s right to make a donation to the defendants. But has it been shown that the act of sale was a simulation, covering a disguised or indirect donation to the defendants in violation of the plaintiffs’ rights as forced heirs ?
On the 9th December, 1844, Antoine Dupuy conveyed to the defendants, by authentic act, a small tract of land of three-fourths of an arpent in front by forty in depth, with the double concession, described to be bounded above by the land which he then owned and occupied, and also a negro woman and her five children, for the price of $2000 cash. There were no improvements on this land, on which Dupont has, since the death of Dupuy, constructed fences and a levee. The vendor died in 1850. Thus the land in dispute and the lands owned and occupied by Antoine Dupuy, originally formed but one tract, which was assessed in the name of the latter, and, it appears, continued to be so assessed until the year 1851, and in 1845 it was assessed at $1500. The slaves were also assessed in the name of Antoine Dupuy. From 1845 to 1850 there was only one slave, and in 1850 three slaves, assessed in the name of Dupont,. *231and in 1851 the land and eleven slaves were assessed in his name, the land at $2000 and the slaves at $6500. One of the plaintiffs’ witnesses testifies that Antoine Dupuy, in 1846, gave in, under oath, the land and slaves in question to be assessed as his property, in the presence and within the hearing of Dupont. Another witness testifies that Antoine Dupuy, in speaking of the property, always said my land, my negroes, and whenever Dupont loaned anything from the plantation it made the old man angry, and Dupont knew it. Here it is proper to notice that none of the implements of husbandry, or things attached to the land on which the parties resided, constituted any part of the property conveyed to the defendants. One of the witnesses testifies that the land in question was worth from $2000 to $2500; another witness, that it was worth $3000, and both concur in their testimony that the slaves were worth $1500. It is admitted that the land on which Antoine, Dupuy resided constituted the only property which he owned at the time of his death.
On the other hand, it is shown that Dupont was an industrious mechanic, and remarkably economical. In October, 1843, it appears he had in deposit upwards of $2000, wages which he had earned. He was married about this time, and lived with his wife in the same house with his father-in-law, until the period of the latter’s death. One of the plaintiffs’ witnesses also testifies that Dupont, in conversation with him, expressed the pain he felt on account of the bad terms on which he was with the heirs of Antoine Dupuy in relation to his purchase of the property in dispute, on account of which, Dupont said, he had only paid $1400, leaving a balance of $600 still due by him; and that if the heirs would reimburse him the amount he had thus paid, as he thought an injustice had been done to them, he would be willing to annul the sale.
This constitutes the substance of the evidence on which the plaintiffs rest their claim for redress against an act which they allege to be in fraud of their rights as forced heirs. In this respect they have been allowed the benefit of resorting to parol evidence for the purpose of impugning a solemn act of sale from their father. In this they have not succeeded. However-, before dismissing this subject, it is proper to notice more specially the evidence in relation to the question of simulation. At the date of the act of sale, and up to the time of the death of Antoine Dupuy, the parties lived together in the same house. Erom this it must be inferred that the tradition or delivery of the property accompanied the act of sale, (C. C., Art. 2454, 2455,) for it is well settled that where the vendor and vendee live in the same house, possession follows title. 3 N. S. 337; 19 L. R. 349; 1 R. R. 41; 11 ibid, 533. The fact of the relationship between the parties does not of itself constitute a badge of fraud or simulation, (9 M. R. 649; 1 N. S. 835; 19 L. R. 600; 6 N. S, 643,) nor does the fact that the property continued to be assessed in the vendor’s name, and the other circumstances of the case, afford sufficient ground to establish the alleged 'simulation.
III. The third objection which the plaintiffs raise to the validity of the act of sale is, that it contains an advantage or extra-portion in favor of Irma Dupuy, or, in other words, such a donation as she is bound in law to collate. It is hardly necessary to state that collation is due only by heirs to their coheirs, and not by strangers. The sale, so far as Dupont, the husband, is concerned, could not in any event be subject to the provisions of the Code regulating the mode of making collation; and, as regards the vendee, Irma Dupuy, who is the plaintiffs’ co-heir, the form of the present action is radically defective. Collation is an incident of the action of partition, and the party who *232is subject to this demand has certain rights to exercise in complying with it, such as to make the collation in kind or by taking less, etc. See C. C., Art. 1275, 1306, 1329, 1334, 1335.
I am, therefore, of opinion that the judgment of the District Court, ought to be reversed, and rendered in favor of the defendants, reserving, however, the plaintiffs’s right to any claim for collation which they may have against the said Irma Dupuy.
A rehearing was applied for, when the following order was made:
Spofford, J.Ordered that a rehearing be granted only as to the propriety of amending the decree so as to order the collation of the property in controversy, a majority of the court being of opinion that the rehearing should be restricted to that question.
Upon a rehearing:
Spofford, J.It is ordered that the decree heretofore rendered in this cause remain undisturbed.