On Rehearing.
Manning, J.The mother of the plaintiff was appointed her tutrix in January I860 and filed a provisional account of her tutorship in. May 1870 shewing that over eight thousand dollars was due the plaintiff. She attained her majority in May 1873.
An abstract of the inventory of the deceased father’s estate had been> recorded in 1869 and reinscribed in 1879. The tutrix had real estate which by forced alienations had passed into the hands of the defendants. This suit is a hypothecary action to subject that real estate to« the claim of the plaintiff against her mother, and was instituted in September 1882.
The prescription of four years is pleaded and that time expired in-May 1877 running from the plaintiff’s majority. Up to that date no-attempt had been made by the plaintiff to enforce her mortgage-against her mother’s property and no suit had been instituted respecting the acts of her tutorship. It was not until May 1880 that the-plaintiff sued her former tutrix (as her counsel’s brief says) “with the view of homologating and making executory the account filed two or three years before her majority.” Judgment Was rendered in that suit-in April 1881 and this suit followed in the next year.
The action of the-minor against her tutrix is prescribed after four years, Rev. Civ. Code art. 362, and more than that timo had elapsed, from the plaintiff’s majority to her suit in 1880. The account filed by the tutrix in 1870 during the plaintiff’s minority was one of those periodical accounts rendered provisionally that are required to bo filed every year. Even when homologated, the judgment of homologation is merely prima facie evidence of their correctness, and this account, was never homologated. It lay dormant until a suit by the Bedell heirs against the widow Bedell was instituted when the amount stated as due by this account was reduced, and that it was not considered-determinative of the plaintiff’s claims is apparent from her suit in 1880 instituted expressly to obtain an adjudication of them. Such accounts-are not conclusive on the minors vho may contest them after major*809ity, Lay v. O’Neal, 29 Ann. 722, and they are not therefore a judicial ascertainment of the rights and liabilities of the parties respecting the tutorship. Wo have lately held after mature consideration that, they cannot serve as a foundation for the hypothecary action. Cochran v. Yiolet, ante 221, and in that case we went further than is necessary to hold in this.
The minor is given four years after majority to overhaul these accounts, to contest their correctness, and to compel the tntrix to a settlement. If after this time has elapsed and no legal action has been taken respecting the tutorship, third parties have acquired rights upon the property of the tntrix, the former minor has no one else but herself' to blame for not using the first four years of majority in forcing an adjudication of her rights.
The inscription of the inventory of the father’s succession in 1869' and its reinscription in 1879 preserved the mortgage of the plaintiff, but could no more keep alive the debt which that mortgage secured than the inscription and timely reinscription of an ordinary mortgage-can keep alive a note secured by it. Suit must be brought upon a mortgage note within five years or prescription must otherwise be interrupted or else the note will be prescribed, and the fact that th©' mortgage is still alive will not save the note.
So long as the relation of tutrix and ward exists prescription does-not begin, but whether provisional accounts have been rendered during minority or not, prescription does begin from the majority of the ward, and the Code interposes it as a conclusive bar to any claim respecting the acts of the tutorship, and to protect third persons from collusion between the former tntrix and ward or from failure of the tutrix to use the plea, it was long- ago held in a case very similar to this that a third possessor can avail herself of the plea even when the tutor has-renounced it. Blanchard v. Decuir, 8 Ann. 504.
The lower court sustained the plea but we reversed that judgment on the first hearing.
It is therefore ordered and decreed that our former judgment be set: aside and that the judgment of the lower court is affirmed with costs.
Todd, J. adheres to the opinion read by him on the first hearing.