The opinion of the Court was delivered by .
Manning, J.The suit is for the resolution of a sale.
Lucretia Wade bequeathed her whole estate to her grandchildren, two of whom were children of her soji Henry, who was living. There were other forced heirs also, and the testamentary disposition was in consequence reduced, so that the two children of Henry became entitled to only 10-72 of the succession.
A partition was made under decree, and the property in question, an improved lot in this city, was bought by Henry at the sale for $22,500, one-third cash, and the residue on time. The notes were secured by mortgage as usual. It is alleged no money has ever been paid to or for these two minors by their father upon the purchase. He was the debtor, as purchaser of the property, and this portion of the price was due his children, and no one could receive it but liijnself. In due time all the notes, representing the credit instalments, were presented to the Recorder of Mortgages as paid, and the inscription of the mortgage was cancelled.
Albin Rochereau loaned Henry Wade a large sum of money taking a mortgage upon this property as security. The records shewed it was unincumbered. Wade afterwards went into bankruptcy, and at the sale of his estate, bis creditor Rochereau bought this property to save his debt, or as much of it as he could.
Then Wade died, and the defendant became his executor, and his widow as tutrix of the two children instituted this suit. Rochereau intervened to protect his title, and oppose the resolution of the sale.
It is conceded on both sides that the decision of Troxler vs. Colley, 33 Ann. 425, has totally changed or materially altered the legal attitude of tlie parties to this suit. This suit was tried before that decision was rendered. By it, the property acquired by an heir at a partition sale of the ancestor’s succession and paid for with his heritable share thereof, is declared to be his separate property, and the mode of acquiring it to be not a sale in the ordinary acceptation of that word, nor in its legal sense.
That fundamental principle being thus established, the property acquired by Henry Wade at the partition sale was not an acquisition by purchase and sale, but was an inheritance, and it necessarily follows that the resolutory condition which is implied in commutative contracts, and which inheres specially in a sale, did not attach to it. *548This suit is to enforce that condition. Its non-existence abates the suit.
The plaintiff’s counsel feel the force of this inevitable deduction, but urge that the action in resolution is the only means by which these children can receive their share of the property purchased by their father, as he died, insolvent.
It seems a hard case, outside of the Pentateuch, that the sins of the fathers shall be visited upon the children, but it would be yet harder if the man who had lent his money on the faith of the father, and on the condition of the public records produced by him, should suffer instead of them. It would be cause for gratulation if the inexorable application of a legal principle always met the demands of justice as fitly as it does here.
Judgment affirmed.