The opinion of the Court was delivered by
Fenner, J.Plaintiffs are four of six forced heirs of their deceased mother, Mrs. Laura Wood, and they bring this suit to recover from the defendant their four-sixths interest, as such heirs, in a certain plantation situated in the parish of Tensas, which, they allege, is unlawfully held by said defendant under an adjudication made in reality to him, while he was administrator of the succession of their deceased mother, at a sale provoked by himself, in said succession, of said property belonging to said succession, in contravention of the prohibition contained in article 1146 of the Civil Code. The petition contains various other charges against the conduct of defendant in his administration of the succession, which we do not find it necessary to consider, because we think the matters referred to are either closed by the homologation of his accounts, or, even if open, are not sustained by sufficient proof.
The salient question of fact in the case is whether or not the defendant did purchase the property in contestation, “ by himself or by means of a third person,” while he was administrator of the succession to which it belonged and in which it was sold.
If he did, such purchase was in direct violation of the prohibition contained in article 1146, O. C., and is absolutely null and void. It is not denied 'that he wa^ administrator of the succession, that the property *747belonged to the succession, and was sold under order oí the probate court rendered on his own petition as administrator. It was adjudicated to one Wade Harrison, who subsequently made title to defendant, and it is averred that Harrison was a party interposed by defendant, and that the latter was the real purchaser.
It is clearly established that Harrison was the brother-in-law of defendant; that he lived in Mississippi; that he came to the parish of Tensas about the time of the sale; that he and Nicholls were present together at the sale; that, on the day of sale, viz: May 8th, 1869, defendant gave him a full receipt for the purchase price; that, although the title was made to him, he did not pay the price, but that the same was assumed and accounted for as cash by defendant; that Harrison left immediately for home, and the plantation remained in the possession and under the control of defendant; that defendant then proceeded to close up the succession, file and homologate his accounts, and settle with the heirs; and that, some months after the receipts of the heirs had been obtained, Harrison, on the 26th of December, 1870, reconveyed the place to defendant for the pretended price of three thousand dollars, recited in the deed to have been paid and delivered, in cash, in the presence of the officer and subscribing witnesses, although it is admitted that no such payment was really made.
The mere recital of these undisputed facts produces a powerful impression on the mind that defendant was the real actor in the purchase and Harrison merely his representative. They evince a studious disguise and concealment of the real transaction, which suggest an ulterior motive for covering up the truth. How did it happen that Harrison, a resident of another State, chanced to'turn up in Tensas just at the date of the sale ? Why did he purchase the plantation ? Why did he immediately turn over his bargain to Nicholls without profit ? Why the fictitious receipt for the price ? Why the false title to him ? Why did he leave without re-transfer to Nicholls ? Why the long delay until some months after defendant had wound up the succession and obtained the final receipts of the heirs ? Why the circumstantial, and yet false, recital in the reconveyance to the effect that the consideration was the price of $3000, presently paid in cash in the presence of the officer and of the subscribing witnesses ? These queries inevitably suggest themselves and require clear and'-satisfactory answers. The evidence, far from furnishing such answers, adds force to the suspiciousness of the proceeding.
A. T. Wood testifies that he had a conversation with Harrison during the past year, in which the latter stated that “ he had come to purchase this property at the request of Joseph Nicholls, and for the use of Joseph Nicholls.”
*748Neither defendant nor Harrison contradicts the truth of this statement.
Harrison, after stating that after the adjudication was made to him Nicholls came to him and proposed to take the purchase off of his hands and that he consented, is driven to admit: first, that he bid in the property with the intention of selling to Nicholls, and finally, that “ he bid the value of the property for the use of the defendant, because he thought it was for the interest of defendant and the heirs.” It is noteworthy that Harrison was made the witness of plaintiffs, and that counsel for defendant did not cross-examine him.
The testimony of defendant himself is vague and inconclusive. He does say that “ the purchase of the plantation was not made by virtue of any agreement or compact between me and Mr. Harrison;” and he says that it was after the sale that he agreed to take the purchase off of Harrison’s hands. But he does not negative the idea that there may have been an understanding between them before the sale. He does not pretend to explain any of the suspicious circumstances. On cross-examination, he says: “ I don’t know that any one requested Harrison to purchase this property. I don’t knoio that there had been any conversations between us as to the purchase of the place. There may have been.”
Erom the whole evidence, we can reach no other conclusion than that announced by the j udge a quo, that it establishes “ the fact that Harrison was a party interposed and purchased for the defendant, then the administrator, and the sale was, therefore, under the law, null and void.
II.
It is contended, however, that the nullity here set up, though absolute, is one established in the interest of individuals, and may be ratified by the parties in interest. This is no doubt true, subject to certain limitations which do not affect the present case.
C. C. 11; Scott vs. Gorton, 14 La. 122-3; 7 Toullier, Nos. 558, 561.
It is next said that the receipt by these heirs of their virile shares of the proceeds of this sale operates a ratification of the sale and an estoppel against their contesting its validity, unless the ratification was made in ignorance of the facts from which the nullity results. The authorities quoted by defendant’s counsel sustain this proposition. But we think the ratification relied on cannot avail defendant here, for two reasons, viz:
1st. The estoppel should have been specially pleaded and cannot be set up under the general issue.
It is manifestly a means of defense, analogous to payment, release, *749novation, etc., going to show the extinction of an obligation proved to have once existed, and must, therefore, be pleaded specially.
6 L. 157; 9 L. Ill; 17 L. 82, 259, 371; 19 La. 512; 5 R. 186; 9 R. 256; 6 An. 778.
We cannot concede the proposition contended for by defendant’s counsel, that the mere allegation in plaintiffs’ petition, that they had received the proceeds of sale in ignorance of the fact which created its nullity, dispensed the defendant from pleading this special defense.
This allegation was mere surplusage, not essential to their recovery, and not necessary to be proved under the general issue. The general denial-only puts at issue the facts necessary to plaintiffs’ recovery.
19 L. 366; 5 R. 117; 10 R. 153; 13 An. 375.
The allegations of the petition on this point amount merely to a denial that they had ratified, and are not different in effect from an allegation in a petition of debt, that it had never been paid. Would it be claimed that such allegation would dispense a defendant from pleading payment ?
2d. The foregoing objection is, however, of little consequence in this case, because the evidence satisfies us that the plaintiffs were, and must have been, ignorant of the fact that defendant was the purchaser. How could they have known this fact ? Nicholls does not pretend to have informed them of it. The bid was made by Harrison. The receipt for the price was given to Harrison. The title was made to Harrison. The property was kept in Harrison’s name until after the whole transaction was consummated and the receipts of the heirs obtained. Even when the reconveyance was made to defendant, care was taken to hide all connexion with the original transaction by falsely reciting a different price and its actual payment in cash in presence of the officer and witnesses. In view of these painstaking efforts to conceal the fact of the purchase having been made by defendant, and in absence of any circumstance even suggesting any knowledge on the part of plaintiffs until the statement made to one of them just before this suit, by Harrison, it would have been superfluous to administer further proof of ignorance, and was no doubt so regarded by plaintiffs’ counsel.
III.
The judge a quo gave a judgment of nonsuit against plaintiffs on the grounds that, in a legal sense, as heirs of their mother, plaintiffs must be regarded as the vendors of defendant, and that it was a necessary condition precedent to their right of action to annul the sale that they should prove a tender of the sums received by them on account of the price.
The doctrine of antecedent tender is derived from no textual pro*750vision of the law, but rests upon equitable principles, and should be controlled by equitable considerations.
It has been applied in redhibitory actions, in actions to rescind sales for breach of the resolutory condition, in actions of rescission of commutative contracts, in suits-to compel conveyance where the legal title is in defendant and the equitable title in plaintiff; in suits for the enforcement of relative nullities, and in similar cases.
After a somewhat exhaustive examination, we find no instance of its application in a case like the present, where the nullity of defendant’s title is absolute, resulting from the active violation of a prohibitory law made to regulate defendant’s conduct in a fiduciary capacity, and where such violation was disguised and concealed from plaintiffs, who received what was paid to them in ignorance of such violation, and who only discovered the fact years after the payment. It is manifest there was never any contract of sale and defendant never had any title. Defendant’s claim is not a claim for restitution of price, for there was no sale, and, therefore, no price. The title of plaintiffs has never been divested. Their right to recover the property is absolute, and not dependent upon any antecedent restitution. Defendant’s right to recover does not spring from any contract which is annulled, but is an equitable claim for money paid by him for the benefit of plaintiffs.
We discover no principle of equity requiring plaintiffs to tender this money to defendant before asserting their absolute title to property belonging to them and held by defendant as a mere possessor without title. Ail that equity could possibly require would be to permit him to set up his claim in reeonvention, which would not be denied.
An additional reason for disregarding the objection of want of tender in this case, is that such plea should have been set up in limine or, at least, specially pleaded. We cannot recognize the right of defendant to take his chance on a trial of the merits, and when defeated, to set up a plea in abatement of this kind.
Finally, it appears from the pleadings and proofs that defendant is, in the sense of the law, a possessor in bad faith, responsible for fruits and revenues during more than ten years, and worth at least one thousand dollars a year. In asserting such a claim there was no equity nor necessity for plaintiffs to make a tender of the very much smaller amount received by them.
Robert vs. Brown, 14 An. 597.
Woods vs. Woods, 13 An. 189.
IV.
As just stated, defendant is a possessor in bad faith and, as such, bound to the restitution of fruits and revenues. These are alleged to *751have been fully worth one thousand dollars per annum, during the entire time of defendant’s possession, and this allegation is sustained by the direct and positive testimony of two witnesses, who are entirely uncontradicted.
Per contra, defendant is undoubtedly entitled to necessary expenses for the preservation of the property, under article 2314 O. 0., and to a proper adjustment of his claims for constructions and improvements, under article 508, C. C. We find not even plausibility in the contention of plaintiffs’ counsel that this article does not refer to possessors in bad faith.
We are somewhat embarrassed by the anomalous circumstance that defendant has not, in his pleadings, asserted or prayed for judgment on such claims. This would undoubtedly be necessary under the general rules of pleading; but inasmuch as evidence was received on these points, without objection in the court below, and as justice requires an accounting in such cases, we will not debar the defendant from relief.
The evidence, however, is entirely insufficient to enable us to deter - mine his rights under the law.
As to expenses and repairs, he is only entitled to such as were neces - sary for the preservation of the property, under the express terms of C. C. 2314. As to constructions and works made with his own materials, the owner would ordinarily have the option of requiring them to be demolished and removed, or of keeping them and paying to the possessor the actual present value of the materials and workmanship. In the present case, however, as plaintiffs only recover an undivided interest in the land, they are not authorized to require the removal and demolition against the will of théir co-owners, and must, therefore, be confined to the last mentioned alternative.
As to improvements by their nature inseparable from the soil, such as ditching, wells, etc.', he is not entitled to compensation.
See 12 An. 545; 16 An. 243; 24 An. 253; 26 An. 588; 99 U. S. 513.
In view of the insufficiency of the evidence in the present record to enable us to make an intelligent finding on these points, we will shape our decree so as to preserve the rights of parties.
It is, therefor?, ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiffs and against the defendant, recognizing and declaring the plaintiffs to be the lawful owners of four undivided sixths interest in the property described in the petition herein, and that plaintiffs have judgment against defendant for four-sixths of the rents and revenues of said property, at the rate of one thousand dollars per annum, from May 8th, 1869, subject to a credit of seven hundred and fifty-three 56-100 dollars (being the amounts received *752by plaintiffs from defendant in settlement of their mother’s succession), with legal interest thereon from July 23d, 1869.
It is further ordered that this cause be remanded to the District Court for further proceedings for the purpose of ascertaining the amount, if any, which may be due by plaintiffs to defendant for necessary expenses for the preservation of the property and for constructions and works, according to the principles settled in the foregoing opinion, said amount when so found to be offset against the foregoing judgment; and that execution of the money judgment above rendered in favor of plaintiffs be suspended until the settlement of defendant’s rights and claims, as above set forth by final decree, defendant and appellee to pay costs of the lower court and of this appeal.