APPLICATION FOR REHEARING.
Bermudez, C. J.We did not propose, to say, in our previous opinion, that creditors of a succession had a right to proceed and obtain ex parte an order for the, sale of property to pay them, for that would have been running counter the well seated jurisprudence which requires a contradictorary proceeding in such cases. 26 A. 804; 10 A. 238; 3 A. 408; 3. R. 35; 5 R. 98; 10 R. 458; 29 A. 560; 33 A. 343.
We, simply considered that, if the- petitions and orders under which the, property in question was decreed to be, offered and re-offered for sale, were open to attack on that ground,, surely neither the executor nor the first adjudicatee could be listened to do so, and this for obvious reasons.
They were, intervenors, and as such c.ould raise no issue, not susceptible of being legally formed between the, second adjudicatee and the mere possessor or occupant, or keeper without any title, and not permissible under the pleadings. They must join either or resist both.
Hence the objections to the inadmissability of proof in support of the averments of the intervenors, were properly sustained.
The executor and the first adjudicatee cannot be allowed to find any fault with the first proceeding, by the creditors for the sale of the property, as they are themselves, in their intervention, that the sale made was regular. If such was the character of the first proceeding, it is also that of the second, which was necessary as a furtherance of the prior one. 32 A. 265,.
Of course an executor is always before the court and deemed cognizant of pleadings affecting the succession which he 'represents; but this does not mean that ex parte proceedings acquire an immediate binding effect on him, the mouthpiece of tlie creditors-and heirs.
*447If anything of the kind be illegally done, to which valid objection exists, the law does not leave him without remedy to prevent the infliction of the unauthorized wrong. Should he fail to invoke the same seasonably, and were the others concerned to acquiesce in his direliction by their silence and inaction, and should innocent parties acquire rights, could he not and those he represents, be viewed in the light o a, defendant, present in the parish, where a judgment rendered against him without citation has been executed"? C. P. 612.
Our decision was, like that of the district court, simply to the effect, that, as between the plaintiff in rule and the mere occupant of the property, the former was entitled to possession, 'in furtherance of the adjudication and compliance with the terms thereof, without prejudice to any adverse rights which the intervenors might have and assert in a proper proceeding.
Rehearing refused.