The opinion on the original hearing was delivered by Manning, C. J., and on the rehearing by Spencer, J.
Manning, C. J.Elise Labauve, Joseph Hernandez and others, judgment creditors of Emily Woolfolk, have appealed from a judgment of the Parish court of Iberville, dismissing their interventions wherein they seek to annul the decree of partition rendered by that court, and oppose the homologation of the proceedings founded upon it.
As our opinion is based upon the incompetency of the Parish court to render the decree of partition, we shall confine our recital of the facts to those bearing upon the question of jurisdiction.
Austin Woolfolk the elder died on 20th. of February 1847, owning property in Maryland, Tennessee, and Louisiana. He left five minor children, issue of his marriage with the defendant, to wit, Samuel who died prior to May 2 1861, unmarried, intestate, and without issue— Joseph B. Woolfolk, Louisiana T. Woolfolk, Austin Woolfolk, jr. and Sara Woolfolk. He bequeathed to his wife and minor children his property in Louisiana, to be held by them as they would have held it under the law of Louisiana, had he died intestate. The defendant, their mother, was confirmed as their natural tutrix by the proper court of Iberville parish on 26th. of February 1847, that parish being the domicil of the decedent. On 2nd of May 1861, the surviving children (Samuel being dead) were either of age, or had become sui juris by dispensation from the disabilities of minority through judicial emancipation.
At the close of the war in 1865 Emily Woolfolk had become pecuniarily embarrassed, as was also Joseph B. Woolfolk, the eldest son. Judgments for large sums had been obtained against her, and were duly recorded in the proper office of Iberville parish, and operated as judicial mortgages on the Mound plantation in that parish. That property being thus incumbered, Emily Woolfolk, by notarial Act of 20th. September 1805, sold to her son Austin all her community interest, and all the succession rights which she had inherited from her deceased son Samuel, in and to the property inventoried in the succession of her hus*141band, also deceased, and on the same day, .Joseph B. Woolfolk sold to the same party all the succession rights, inherited by him from his father, and from the deceased Samuel. The inscription of the judgments of Hernandez and other opponents was anterior to the sales, and whatever consequences followed from these judicial mortgages, the sales did not include, nor did they divest the defendant of her usufruct, as surviving widow in community, of that half of the community property which belongs to the children. She owned the other half absolutely. The judicial mortgages affected both of these'interests.
John Patrick, an adopted son of the elder Woolfolk, and Austin recovered judgments against Emily Woolfolk on 11th May 1866, the former for $2442,70 and the latter for $8424 with interest, and issuing executions upon them, seized and sold the usufructuary interest of the defendant in the community property, and became the purchasers thereof, each in proportion to his respective judgment. On 21 January 1869, John Patrick sold the usufructuary interest thus acquired to Austin Woolfolk, who thus becoming owner of the entire usufruct of his mother, sold to his sisters Sara and Louisiana on 10th. February 1869, one undivided third thereof to each. Austin and the two sisters thus became owners in equal parts of the usufruct.
But before the purchase of the defendant’s usufructuary interest by Patrick and Austin, she had made a lease on 1 March 1866 to Patrick of the Mound plantation for four years from 12 January 1866, which remained in force until the same month of 1868, when it was rescinded by mutual agreement.
On the 9th. of November 1866, the Woolfolk children, including Joseph, instituted suit against their mother, as executrix to compel her to account for her administration of the succession, and they also prayed to be decreed the owners of an undivided half of all the property of the •succession situated in Iberville parish, and of one half of the sum due from her to the succession for moneys received from the proceeds of sales of property, and from other sources,, which they alleged was $86,-■015. They also claimed a tacit mortgage on the immovable property of their mother to date from 26th. Eeby. 1847. Judgment was rendered against her without opposition, and it was decreed that Austin, and his sisters Sara and Louisiana, were the owners of one undivided half of the property inventoried in the Succession proceedings in the following proportions, viz Austin was owner by inheritance and by purchase of 42-160ths — Louisiana and Sara by inheritance, each of 19-160ths.
This decree also adjudged that these three, and Joseph, recover of their mother $39,877.57, each, his or her virile share, and that their legal mortgage, securing that sum dated from 20th. Eeby 1847, and operated upon all of the defendant’s property that was susceptible of mortgage.
*142Zenon Labauve, a judgment creditor of the defendant, having recorded his judgment on 3rd June 1865, and thereby acquired a judicial mortgage, appealed from this decree, in so far as it allowed the legal mortgage above mentioned, and this Court reversed the judgment quoad that mortgage, and declared that the only effect of a judgment upon this demand of the children in that suit was to close the administration by Mrs. Woolfolk as executrix, and fix the amount in her hands as usufructuary. Woolfolk v. Woolfolk, 20 Annual, 513.
This decision appears to have been unsatisfactory to all the parties to that suit. On the 10th. of February 1869 they entered into an agreement, wherein Mrs Woolfolk renounced the benefit of the plea of res judicata so far as the legal mortgage asserted by the children against her in that suit was concerned, and in consideration of $2000, she transferred to them whatever usufructuary rights she possessed, recognized the validity of the judgment of this Court so far as it fixed the sum of money due by her, and consented to an immediate judicial partition of the common effects. This agreement divested her of her usufructuary rights on and in the amount of the monied judgment recovered against her by her children, and she had been previously divested of these rights on all the residue of the community property by the judicial sale under the executions of Austin Woolfolk and John Patrick, and by the sale to Austin of 20th. Sept. 1865 she had divested herself of all interest as owner of her half of the community property, or as heir of her deceased son Samuel.
Having thus prepared the way for a partition, the suit to effect it was suspended until 7th. of June 1869. In the meantime however, viz on 1st March of that year, the defendant and her son Austin rescinded the sale of 20th Sept. 1865. She returned, or professed to return to him, the original consideration of that sale, $14,532, and the motive inducing the rescission is stated in the Act to be ignorance of the nature and extent of the incumbrances on the property existing at the time the sale was made.
Having thus re-invested their mother with the ownership of one half of the community property, and her share in the succession rights of her deceased son Samuel, this suit for partition was instituted on 7th. of June 1869 in the Parish Court for Iberville by Austin Woolfolk and his two sisters Louisiana and Sara. Joseph B. Woolfolk was not a party thereto, although interested as co-proprietor of the judgment for over thirty nine thousand dollars, recovered against the defendant as executrix, already mentioned.
The plaintiffs in this partition suit allege that the defendant had received in cash $83,952.76, and that therefore she should take in the partition less that sum, and the remaining property should be sold to *143equalize the lots. They allege that the defendant, as partner in community, was entitled to one half, or 80-160 -parts of the common property, and as heir of Samuel to 4-160 parts thereof — that Austin was entitled in his own right to 16-160 parts, and as heir of Samuel to 3-160 parts, and as assignee of Joseph to 16-160 parts, and that Louisiana and Sara were each entitled to 19-160 parts. They pray for a judicial partition of the common property, and also of the sum of $83,952.70 due by their mother, and further for recognition of a legal mortgage in their favor on all the property of their mother that was or is susceptible of mortgage.
The defendant permitted judgment by default to be entered against her, and there was a decree for a partition, and requiring the notary to take into consideration as part of the entire mass, the sums of money received by the defendant from sales of property, and from other sources. These sums constituted .the amount of $83,952.76 above stated.
The common property was advertised for sale, and it was enjoined by the creditors. Pending the. litigation Austin Woolfolk died, bequeathing to his mother all she was entitled to receive as his forced heir, and the remainder of his estate to his brother Joseph and his two sisters. Although Joseph thus became interested in the common property, he was not made a party to the partition suit, nor was Austin Woolfolk’s succession represented except through a testamentary executor.
At this juncture, the injunction whicli had delayed the sale was dissolved, Woolfolk v. Woolfolk, 24 Annual, 282, and the common property was sold on 3rd. December 1874 for twenty-five hundred dollars. It was appraised for a much larger sum. The purchasers were Joseph and the two sisters in equal undivided shares. On the 5th. of same month the notary made a partition, whereby the hitherto common property was allotted to the plaintiffs in this suit and the defendant was settled with by allowing her credits on her indebtedness to her children.
At this stage of the proceedings, Mrs. Labauve and other judgment creditors filed interventions, and opposed the homologation of the partition on various grounds, and among them, that the partition was null and void ab initio for the reason that the succession of Austin Wool-folk the elder had been closed long prior to the institution of the suit— ■ that the heirs, all being of age, had accepted the succession unconditionally, had entered into possession of the common property, and that they held it as co-proprietors with their mother, who had also accepted the community, and therefore the Parish Court had no jurisdiction of the partition suit.
The petition for emancipation of the.minors — the sale from Joseph *144to Austin — the lease and its rescission — the sale from Mrs. Woolfolk to Austin and its rescission — the suit of the children against their mother for an account of her administration of the succession, and the judgment rendered in that suit — all show that the succession of Austin Woolfolk the elder was closed, and that the parties had taken possession of the property, and disposed of it as owners. And this being true, it was no longer a succession that was sought to be partitioned, but common property of several owners of large value, and the Parish Court had not therefore jurisdiction of the suit for partition.
If the Court had no jurisdiction to decree a sale for partition, it is manifest that the purchasers at the sale made under that decree acquire no title therefrom. If they have any title, it can only be by the voluntary transfer of the parties, and hence none of the effects flowing from a judicial partition are produced. It is true that Mrs. Woolfolk, the defendant, may be estopped from questioning the validity of the sale, because she allowed the decree to be executed. It is also true that Joseph B. Woolfolk, who became a joint purchaser with his sisters, may be precluded from attacking the partition proceedings, but these estoppels operate against them, and have no greater effect than voluntary transfers. They do not change the character of the partition. They can not make that a judicial partition, which derives its force and effect from their consent alone.
It follows that the judicial mortgages of the opponents have not been displaced by the sale under the decree for a partition, and have not been transferred from the property to the proceeds. And therefore,
It is ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that there be now judgment in favor of the Intervenors maintaining their oppositions and interventions, and dismissing the suit for partition at the costs of the plaintiffs therein.