On the Merits.
The opinion of the court was delivered by
Morgan, J.Joseph Gibbs, Sr., owed Robert Henderson fifteen hundred dollars. To secure this indebtedness, Gibbs, on the twelfth of February, 1857, mortgaged a certain piece of property situated in the town of Opelousas. Robert Henderson died. His estate was inherited by his father, William Henderson. Forming part of his inheritance was the above-named indebtedness.
*528William Henderson died. He left to the minor children of Joseph Gibbs and to his wife, Bridget M. Carroll, the debt due by Joseph Gibbs. He appointed Joseph Gibbs his executor.
Mrs. Gibbs died on the twenty-second of February, 1864, leaving two minor children. She was in community with her husband. Her estate consisted in her interest in the community which' existed between her husband and herself. The community owed no debts. On the second of February, 1866, Joseph Gibbs was appointed natural tutor to his minor children. As natural tutor he retained in his possession the property which composed the community which existed between himself and his wife and administered the same.
An abstract of the inventory of his wife’s property was recorded in the mortgage record of the parish of St. Landry, the parish of domicile, prior to the first of January, 1870, to wit: on the ninth of September, 1869.
William Gibbs died without issue prior to the death of his mother. Consequently, his estate went one half to his father and mother and one half to his brothers and sister.
The mortgage executed by Joseph Gibbs in favor of Robert Henderson on the twelfth of February, 1857, has never been reinscribed.
On the twelfth of June, 1857, Joseph Gibbs executed a note for one thousand dollars, payable twelve months after date, to J. A. Lum & Co. On August, 1,1857, Gibbs, to secure payment of this note, mortgaged all his property, including that upon which the Henderson mortgage bore. In addition to the note for one thousand dollars, Lum & Co. held his note for $172 35, dated June 1,1858, payable on demand. This note was not secured by mortgage.
On the nineteenth of January, 1866, Lum & Co. instituted suit on these notes, and prayed for a foreclosure of the mortgage. Gibbs confessed judgment. The judgment was recorded on the first of March, 1867.
On the twenty-ninth of July, 1872, execution issued. Under the execution the sheriff seized and offered for sale the property which had been mortgaged to Henderson. He also seized and offered for sale the property which belonged to the community which had existed between Jos. Gibbs and his wife.
Elizabeth Gibbs, in her own right, she being now a major, and Jos. Gibbs, tutor to Joseph Gibbs, Jr., filed a third opposition, in which they claim the proceeds of the property then about to be sold, to the amount of $3625, with interest on $1500 from July 12, 1856, at-eight per cent per annum, and with interest at five per cent per annum on $2125 from the twenty-second of February, 1864, as belonging to them.
Their opposition is based upon the facts above set forth.
At the first offering the property was not sold. At the second adjudication it was sold on a twelve-months bond for $2350.
*529Lum & Co., the defendants herein, pleaded—
Eirst — That plaintiffs have no claim on the property seized. They admit that they once had a conventional mortgage on a part of it (that' portion which was mortgaged to Henderson), but they say that this mortgage was not reinscribed until the first of March, 1867, and that it is therefore prescribed.
Second — That the property of Mrs. Gibbs was in the possession of Joseph Gibbs at the time it was seized, and that the recording of the abstract of the inventory of the estate left by Mrs. Gibbs conferred no rights upon Gibbs’s property.
' After answering, Lum & Go. excepted to the petition, because “Joseph Gibbs, tutor, has never rendered an accojmt of the tutorship, and that until his account was rendered the mortgage claim of plaintiffs, if any, could not be ascertained.” This exception' was cumulated and tried with the merits.
Then Elizabeth Gibbs amended her petition, pleading that Lum & Co.’s claim was prescribed at the time they instituted suit, but that Gibbs, with intent to defraud her and her co-heir, in collusion with Lum & Go., confessed judgment; that at the time the judgment was confessed she was a minor; and that her interests could not be prejudiced by the illegal act of her tutor.
R. H. Littell, under-tutor to the minor, Joseph Gibbs, intervened and set up the same plea.
To both these last appearances Lum & Go. excepted upon the grounds:
Eirst — That their judgment could not be attacked collaterally; and
Second — That plaintiff and intervenor, claiming proceeds of a sale in execution of the defendants’ judgment, are precluded from contesting the regularity and validity of the sale in any way whatever.
The exception was overruled, and both amendment and intervention allowed.
There was judgment sustaining the plaintiffs’ opposition in so far as related to their claim for fifteen hundred dollars on the Henderson mortgage, less one fourth of the share of the deceased minor.
There was error in the ruling of the judge on the exceptions to the amendment and the intervention. A judgment can not be attacked collaterally. Neither can a party claim the proceeds of a sale resulting from a judgment and at the same time say the judgment is a nullity.. We are thus spared the necessity of inquiring as to the verity of the charges made by the children that their father has conspired and colluded with a stranger to defraud them of their rights. The debt due by Joseph Gibbs to Robert Henderson, contracted during his marriage, was a community debt; so was the debt due by Gibbs to Lum & Co.
The donation of the Henderson debt to Gibbs’s children placed their *530father and mother in the same position toward them that they were in toward Henderson. In other words, it was the debt to Henderson due •to Gibbs’s children. In this view it must be regarded in the same light that it would have been if the donation had been made of a debt due by a third person, secured by mortgage; and the same rule would apply with regard to the prescription of the mortgage. Understand that we are treating of a conventional mortgage, not debt. The debt may exist, and the mortgage be perempted. There is no difference between a conventional mortgage in favor of a minor and a conventional mortgage in favor of a major. Both are governed by the same rules, and both are prescribed by the same law. A mortgage,- not reinscribed, held by a major, is prescribed in ten years. It is prescribed against a minor in the same time.
The mortgage granted to Henderson, through whom the plaintiffs claim, was recorded on the tenth of January, 1857. It has never been reinscribed. This suit was instituted in September, 1872. At that time, under the conclusion expressed above, the mortgage was perempted.
Lum’s mortgage was recorded in August, 1857. Judgment was rendered upon it on the first of March, 1867. The judgment was recorded. Erom the date of'the recording of the judgment it became a judicial mortgage. "When execution issued the original mortgage was perempted. But the judicial mortgage took the place of the conventional mortgage, and the judicial mortgage was in force when th e fieri facias issued. But the opponents contend that when the judgment was rendered the note which was secured by mortgage, and the one which was not, were prescribed, and that as the notes were prescribed, therefore no judgment should have been rendered upon them. If prescription had been invoked, perhaps it would have been fatal to the plaintiffs’ claim. Prescription is a personal plea. It may be waived, expressly or tacitly. Here there was a confession of judgment. It was, therefore, necessarily waived. It is, however, contended that the waiver could not be made to the prejudice of the rights of third parties. In the first place, no rights of third parties were prejudiced, for the third parties here were the representatives of Henderson, and Henderson’s mortgage was perempted before the confession of judgment was given. In the next place, the defendant in that suit was-authorized to waive prescription. The debt for which he was sued was a community debt. As such he controlled it. The precise point was lately decided in a case recently decided in New Orleans, the title of which now escapes our memory.
The conclusion to which we have come upon the merits renders it unnecessary that we should express any opinion as to the exception which the defendant took to the proceeding.
It is therefore ordered, adjudged, and decreed that the judgment of *531the district court be avoided, annulled, and reversed, and that the plaintiffs5 third opposition be dismissed, the costs in both courts to be paid by them.