On Application for a Rehearing.
It is claimed that we fell into an error when we stated that both parties had appealed.
To establish this complaint, the learned counsel for the defendants states that his clients were the only appellants; that the plaintiff failed to prosecute and abandoned his appeal, having filed no transcript in this Court.
In verification of those statements, the counsel has made affidavit since the decision of the cause, and calls our attention to the facts sworn to by him, as also to the certificate of the clerk of this Court, which is to the effect, that the transcript in this case was filed, and that the deposit for costs was made by the counsel.
Had the filing of the transcript been a qualified one by the counsel for the defendants and appellants, for their exclusive benefit, and in no way for the advantage of the plaintiff, or had the affidavit and the certificate now before us been previously seasonably submitted, or even had our attention been called to the fact proposed to be proved, during the argument of the cause, contradictorily with the counsel for the plaintiff, we would have given the matter our consideration, and would have determined whether the plaintiff was or not entitled to an amendment of the judgment; but nothing of the kind was done. The transcript was filed without any qualification, and the case was argued and submitted without any notice to us.
In the absence of either of those showings, and finding in the transcript a motion of appeal on behalf of plaintiff, and an order granting him both a suspensive and a devolutive appeal, fixing the amount of the bond to be given in either ease; finding two bonds furnished accordingly by the plaintiff; finding the transcript filed at the proper time, in this Court, without any restriction or admonition to the contrary, we were fully justified in considering and declaring that the plaintiff had appealed and had perfected his appeal. We fell into no error. Having, therefore, decided correctly, we cannot admit that we have gone astray, and will not, therefore, recall our ruling on that ground. The objection, even if founded, comes too late.
*608The next complaint is, that we did not recognize the right of the defendants to seize and sell the heirships of three heirs of James H. Wilson in his succession.
We could not and did not rule on the question, for the plain reason that the representative of the succession of Prank Wilson, an indispensable party, was neither a voluntary nor a forced party to the present proceeding, although he was made such in the seizure and sale case. We have not made the slightest intimation susceptible of alarming any one, to the effect that an administrator can or cannot enjoin the sale of one or more heirships; or that an heirship in and to an entire succession is or not a thing susceptible of sale and mortgage, or that the heirships in the estate of James H. Wilson could or not be sold and mortgaged, separate and apart from the effects of the succession. •
Were the representative of the succession of Prank Wilson a party to this proceeding; were the correctness of the propositions of law contended for conceded, the query, in point of fact, would simply be, whether any heirship was or not sold and mortgaged by the act relied upon; or whether the undivided, undefined, interest or share of one or more heirs, in two specific pieces of real'estate, forming part of the succession assets, was or not what was sold and mortgaged.
As the authors of the defendants have covenanted and have bound themselves, so those holding under them are held.
It is not for us to suggest any mode of relief to the defendants in this case. They claim to be creditors of Prank Wilson. Either their claim is acknowledged by the dative executor or otherwise liquidated, or it is not. If it is, then they can inquire into the affairs of the estate. If it is not, the law points out the remedy to procure a recognition and liquidation. In either case, they surely' can protect and secure themselves against maladministration by the succession representative.
It is singular, however, that they have allowed, or do permit the same person to occupy two antagonistical positions, which may be filled prejudicially to théir interest; but it is not within our power, in the absence of that person as the representative of the succession of Prank Wilson, to pass upon the validity of the claim and security asserted by the defendants, touching which we made ample reserves.
The application for a rehearing is, therefore, refused.