The ox-iiiiion of the Court was delivered by
Fenner, J.The facts, which are uudisxmted, present. the following case:
In 1873, Philoinon Guidry, Jr., made a gratuitous donation inter vivos of a tract of land to his father, Philoinon Gnidry, Sr.
In 188.1, Guidry, Sr., being indebted to his two sons, Philoinon, Jr., (the donor ) and Vahnont Guidry, gave them a (special mortgage on tho same laud.
In 1883, Guidry, Jr., and others, holding the notes secured by this mortgage, judicially foreclosed the same and caused the sale of the property.
At said sale the xu'ox>erty was adjudicated to J. E. Pocho. for $18,000.
Subsequently Poclié re-sold tho x>roi>crty to P. Guidry, Jr., Valmont Guidry and Joseph Guidry, jointly; the first two acquiring five-twelfths each, and the last, two-twelfths. The price was $20,000, of which $3925 was in cash, and the remainder in notes secured by sx>ecial mortgage and vendor’s xirivilege.
In 1887, Jean Tessier, as holder of the last mentioned notes, foreclosed his mortgage, and at the judicial sale, the property was adjudicated to him, and lie is the present owner thereof.
*477Pliilomou Guidry, Sr., (the original donee), is now dead and left no estate.
Pliilomou Guidry, Jr., (the donor), has married and has five minor children.. It is admitted that he is, at this time, insolvent.
In February, 1888, Jean Tessier and Octave Roussel entered into an agreement by which the former agrees to sell, and the latter to buy, the property in question at an agreed price.
On examining the title, Roussel refused to execute the agreement, on the ground that he. would be in danger of eviction by reason of the eventual claims of the presumptive forced heirs, the minor children of P. Guidry, Jr., for their reserve or forced portion, which would be entitled to satisfaction out of said property at the death of their father, if he left no other estate adequate to settle their claim.
The present action is brought by Tessier to compel Roussel to accept the title and to perform his agreement to buy.
The question presented is whether the. title tendered to Roussel is such as he has the right to require and is bound to accept.
If it be true that, at the death of Pliilomou Guidry, Jr., his surviving legitimate descendants and forced heirs would have the right to subject this property in the hands of Roussel to the satisfaction of their legitimate or forced portion, and, to the extent necessary for that purpose, to revendiente the property, it is obvious that the title tendered is not one which a- purchaser would be obliged to accept.
The law of Louisiana, while recognizing the. right of every man to deal with Ms proi>orty as he chooses so tar as onerous dispositions are concerned, places certain restrictions on the power of gratuitous disposition, which cannot be disregarded. So far as gratuitous dispositions are concerned, the law divides the estate of every person into two parts, of which one is called the. disposable portion, of which he may dispose gratuitously according to his pleasure.; the other is culled the reserve or forced -portion, of which he is not permitted to dispose gratuitously to the prejudice of his legitimate descendants or ascendants, to whom the law reserves it and forces the person to leave it, and who are, therefore, called forced heirs.
The amount of the reserve or forced portion is determined only at the death of the de e.ujns, at which time it is calculated upon as a mass composed of the extant property found in the succession after deducting-debts, and of the property which has been gratuitously disposed of during his life. If the extant property does not suffice to satisfy the reserve thus ascertained, the forced heirs are accorded the remedy of reduction, by which they may reven dicate the property donated, in whose-*478soever hands it may be found, and subject it, to the extent necessary, to the satisfaction of their claims.
Every donation, however and whenever made, is, therefore, subject to an implied resolutory condition, binding on the parties thereto and their privies, to the effect that if, at the death of the donor, he shall leave forced heirs and the donation shall prove to be in excess of the disposable portion as then ascertained, the donation will then be resolved to the extent of such excess.
The effect of the accomplishment of this condition retro-acts to the date of the donation, and operates its revocation or dissolution ab initio to the extent of the excess.
Under the general rule that no one can convey a greater title than he possesses and the maxim: resalido jure dantis, rcsolvitur jus aoeipientis, the forced heirs are entitled to exercise their rights upon the property, regardless of subsequent alienations by the donee and free from all mortgages or encumbrances which he or his privies or assigns may have placed upon it. R. O. O. 1493 to 1501; 1502 to 1518 ; 2041, 2045, 3301.
The only shield which the law gives to the alienees of the donee against the attack of the forced heirs of the donor is found in the provision of Article 1517, which provides that if the donee be solvent, they shall first discuss his effects before, resorting to his alienees.
But the admission in this case that the donee, Philomon Guidry, Sr., has already died, leaving no estate, makes this protection totally ineffectual.
The foregoing resume of elementary principles makes it very clear that at the death of Philomon Guidry, Jr., in his present state of admitted insolvency, his children and forced heirs, if then living, would have the right of revendicating this property in the hands of Roussel, if he should complete his purchase, to the extent necessary to satisfy their claims, unless the application of these principles is barred or overcome by others arising out of the peculiar facts of this case.
We have given very serious consideration to all the grounds on which the learned and ingenious counsel for i>laintiff bases his contention that the forced heirs will be forever barred from asserting their rights against this property.
1. He suggests that, by reason of the subsequent dealings between the donor and the donee, there has been, in effect, a “ conventional return,” which is prescribed by Article 1559 as one of the causes by which donations are revoked or dissolved. It is evident that the “ conventional return ” referred to in this article is that which had been pre*479scribed and defined by the prior Articles 1534 and 1535 of tlie Code, and refers to a stipulation embodied in- the donation itself. Hence this cause of revocation has no application whatever.
2. lie claims that the effect of those dealings was to operate a conventional rescission of the donation by mutual consent of the donor and donee. We need not discuss what would be the effect of such a conventional rescission of a completely executed donation; because it is clear that none such has taken place in the instant case. After this qjroperty was donated, the donor was not disabled from lending money to the donee and from securing it by taking a mortgage upon this, or upon any other property of the donee. The taking of such a mortgage was not a dissolution, but an affirmance, of the donation, under a distinct acknowledgment of the donee’s ownership which was the essential prerequisite to his right to mortgage the property. Nor could his pursuit of the specifie remedy provided by law for the enforcement of his mortgage impress upon the latter any quality which it did not possess at its inception.
3. He claims that the subsequent reacquisition by the donor of the property, even by onerous title and for a full consideration, freed it from any claims of the forced heirs arising from the donation. Without holding that such reacquisition could have such effect, it is sufficient, for the purposes of this case, to say that the donor never reacquired but five-twelfths of the property, and the liability of the remaining seven-twelfths to the pursuit of the heirs would suffice to justify the defendant in refusing the title.
4. We confess ourselves unable to comprehend the process of reasoning by which counsel assimilates the acceptance of a mortgage by the donor upon the property given, to an onerous condition inserted in the donation itself, the non-performance of which, under Article 1567 C. C., would give rise to an action to rescind the donation. An action to rescind this donation on the ground that the donee had failed to pay a debt which he had subsequently created and secured by mortgage on the in'operty, would surely have no foundation to rest on; and it sufficiently suggests the utter untenability of counsel’s contention.
5. Finally, it is claimed the obligations of warranty imposed on Pliilomon Guidry, Jr., as the effect of the judicial sales made in the suits to which he was a party, will forever estop even his forced heirs from assailing the title of the purchasers at said sales. ' In other words, the claim is that if the forced heirs of Guidry, Jr., should bring their action of reduction against Roussel, the latter could repel it by opposing to them their obligation as heirs of their warrantor to protect him *480against eviction, under the maxim : “ Quern de evietione tenet aetio, eumdem agenteni repellit exeeptio.”
This contention might be sound if the forced heirs should accept the succession of Guidry, Jr., purely and simply, but, by operation of law, minor heirs accept only with benefit of inventory, and major heirs have the privilege of so accepting, which they would undoubtedly exercise in the case anticipated.
The Code expressly declares: “ Tire effect of benefit of inventory is that it gives the heir the advantage: 1. Of being discharged from the debts of the succession by abandoning all the effects to the creditors and legatees; 2. Of not confounding his own effcts with those of the succession.” Art. 1054, 1032, 1058.
The effect of such acceptance is to prevent all confusion between the rights and obligations of the succession and those appertaining to the heir.
In the language of Baudry La-Cantiniere: “ The action which the beneficiary heir brings against a third person in his own right cannot be paralyzed by an exception founded on a right against the deceased. Thus the beneficiary heir who revendientes his own property which had been unduly sold by the deceased cannot be repulsed by the maxim, Quern de evietione, etc.” 2 Baudry La-Cantiniere, No. 204 ; 4 Toullier, No. 357 ; Pothier, Vente, No. 175; 2 Monrlon, No. 289; 3 Marcado, Nos. 255-6-7.
The same principle undoubtedly apxfiies to the action of reduction brought by the forced heir to revendiente x>roperty donated by the deceased in excess of the forced portion.
This right of action is not derived from the deceased. The deceased had no such right. His donation was x>orf'©ctly binding as to him. Neither he, nor his creditors, nor his simple heirs, nor any person succeeding only to his rights, could attack it.
The right of reduction is conferred directly on the forced heirs by the law, as one personal to them, which can be exercised by them alone and solely for their own benefit, so much so that even when the prox>erty is revendicated, the creditors of the succession have no claims upon it, but it x>asses to the forced heirs free from all succession debts and charges. On the other hand, the obligation of warranty is one personal to the deceased, binding on him and on his succession, and like all other obligations, must look for satisfaction to that source alone.
The beneficiary heir is not bound by it beyond the value of the extant succession effects and may discharge himself entirely by simply abandoning the latter to the creditors.
*481Tims it has been held that where the donee has afterwards sold the thing given to a third person, and the donor has expressly intervened in the act of sale, ratifying it, and expressly promising for himself and his heirs to warrant the purchaser against eviction, such purchaser could not oppose even this express warranty to the forced heirs in their suit, for reduction. Cass, Journal dn Palais, 1868, p. 934.
We, therefore, conclude that the forced heirs accepting under benefit of inventory, bringing their action of reduction in their own right, would not be estopped or hindered by any warranty of their ancestor which would be an exception founded on an obligation of the latter alone. .
This obviates the necessity of examining the marked distinctions between the warranty of conventional sales and that arising under judicial sales. The latter, as regulated by the codes, can hardly be considered as a warranty proper, obligating' the vendor to maintain the title of his vendee but simply imparts an obligation to restore so much of the price as has enured to the benefit of the parties to the sale on the equitable doctrine which prohibits them from enriching themselves at the cost of their neighbor. It seems well settled they are not bound beyond the benefit received. Lambeth vs. Mayor, 6 La. 731; Cleary vs. Muny, 5 Rob. 248.
Hence the claim of the evicted purchaser against Guidry, Jr., would resolve itself into a moneyed claim against his succession to he satisfied like other similar debts.
Of course, what we have said above is not intended, nor will it operate, as decisive of rights between the plaintiff and the forced heirs in any case which may hereafter arise between them. Such case may never arise, and, if it should, will stand upon its own bottom and may be varied by any new facts or considerations which may be then presented. The issue here being whether the title tendered is such good and clear title as the defendant is hound to accept, the parties having agreed upon the facts, and the plaintiff having propounded certain pleas of law on the facts agreed, as sustaining the sufficiency of the title, we have been obliged to determine the validity of those pleas for the purpose of this issue merely, following therein the precedents of this court down to a very recent decision. Beer vs. Leonard, 40 Ann.; Valentine vs. Hawley, 37 Ann. 303; Succ. of Dupuy, 33 Ann. 277; Pontchartrain vs. Durel, 6 La. 481; Rousseau vs. Tate, 6 Rob. 471; Freret vs. Meux, 9 Rob. 414.
*482Tlie defendant is fully justified in refusing a title subject to such danger of eviction.
Judgment affirmed.
[Mr. Justice Poche recuses himself.]