On tiie Merits
On tiie 18th of December, 1885, this suit whs fded. The recitals of the petition necessary to he noticed at this stage of the proceedings are the following, viz.:
Anna and Missouri Burney, assisted l>y their husbands, show that they are heirs at law of R. W. Burney and Fredonia Burney, who died in the parish of Madison in 1866, and who left, in addition to themselves, as their surviving heirs, Tilly M., Matilda, Amelia, and Mary Burney, tin last of whom died in 3878 without issue, Amelia, having left, minor children at her death, there being six heirs in all.
Their mother was qualified and confirmed as natural tutrix for her minor children, and E. B. Towne was qualified as under-tutor; and in that capacity the surviving widow undertook the administration of the succession of her deceased husband, the whole of the property being community, and which consisted of lands embraced in Section 18, T. 14, R. 15, and Sections 37, 18, 27 and 28 in T. 15, R. 14, = 2,200 acres, and 120 acres in Section 32, same township and range»,. Also fractional sections 31, 14 and 15, T. 16, R. 15 — 1,092.49 acres, the whole of which lands being worth, at the date of their father’s death, the sum of $45,-242 50, for the entire interest.
Soon after the death of their mother, E. B. Towne, under-tutor, provoked the convocation of a family meeting to recommend the appointment of another tutor; hut that said meeting, when assembled, advised that no tutor be appointed, but suggested the appointment of an administrator, in stead; and that he be authorized to accept a proposition, which had been made by John J. Garrard, to receive in payment of a claim he preferred against their father’s estate, a sufficient part of the plantation known as the Burney (old) Home place, at a fair valuation, to liquidate said account.
E. B. Towne became the adjudicate©, at sheriff’s sale, made on the 6th of October, 1866, under a writ of seizure and sale, in certain executory proceedings entitled Frank O. Woodman vs. James Tickel, executor of O. O. Woodman, of Sections 11 and 15, being a part of the property above described, and situated nearly opposite the city of Vicksburg, Miss., at the eastern terminus of what was then known as the North Louisiana and Texas railway, for the ostensible‘price of $1,000.
*629E. B. Towne qualified as administrator on tlic 19tliof December, 1866, and furnished bond, predicated upon the inventory Mrs. Burney had previously taken.
On the 20th of February, 1867, E. B. Towne, as administrator of the estate of R. W. Burney, transferred to James J. Garrard, by an act under private signature, an undivided half interest in Sections 11 and 15, T. 16, R. 15, equal to about 364 as., for a price of about $50 per acre, and aggregating $18,200, consisting in “ a giving in payment to the extent of any indebtedness due said Garrard, either individually, or as the member of any firm, by R. W. Burney, or his estate, and the balance of said purchase price at said rate, to be paid to said Towne within twelve months from that date.”
On the 25th of November, 1868, J. J. Garrard conveyed his interest to Mrs. L. V. S. Ames.
In the year 1868, E. B. Towne caused a survey to be made of Sections 11, 14 and 15, T. 16, R. 15, and the same to be laid off into town lots, with streets and squares.
On the 1st of May, 1869, in consideration of $1,000 and the promise to establish a railway terminus thereon, E. B. Towne conveyed to John T. Ludeling his one-lndf interest in the railroad square; the town lots designated by odd numbers ; the right of way through Section 15 ; the undivided portion of Section 15 not laid off into town lots and squares, and, referring to same as being the land acquired by him at sheriff’s sale under the executory proceedings named, and said sale by Towne to. Ludeling was made in pursuance of an agreement previously entered into between them and Mrs. L. Y. S. Ames.
On the 13th of May, 1869, E. B. Towne, in his capacity of administrator of the estate of It. W. Burney, presented a petition to the probate court, representing that “ the succession was embarrassed with debt, which it was impossible to pay without a sale of real estate. That J. J. Garrqrd & Co., claiming to be large, creditors of the estate, for a sum of over $20,000, had submitted a proposition to the representative of the estate, offering to take land from the estate in payment, at a fair price.
“That, a family meeting called to consult upon the interest of the ■minor children of said R. W. Burney, advised the acceptance of the proposition; and the proceedings of said family meeting had been duly homologated on the 30th of November, 1866.” Petitioner suggested and recommended the sale of Sections 11, 14 and 15 in T. 16, R. 15, to pay said debt., and prayed for and obtained an order for the sale accordingly, same having been signed by the district judge; said E. B. Towne, acting ¿is the q>arisli judge, at the time, having recused himself; and, under *630tills order, a writ of sale issued under which said property was advertised and sold on the 24th of June, 1869, and adjudicated to John T. Ludeling for the ostensible sum of $18,054 60, and aproees verdal of sale was executed and recorded.
“ In so far as it was alleged jn said petition that there was necessity for the sale of property to pay debts, and that the proceeding was sanctioned by a family meeting, same was false and fraudulent; because the object of same was to cover patent and radical nullities existing in the titles, by which the said Ludeling and others hold, and claimed to own the said property; and in order to carry out a previous agreement in reference to the acquisition of same, and the division thereof; and that, if same had been sold upon its merits, it would have realized four times in actual cash the amounts pretended to have been paid, and said proceedings and sale Were a fraud upon the law, and the prostitution of the forms of law, to carry out an illegal agreement,” etc.
On the 9th of November, 1870, John T, Ludeling caused to be filed in the recorder’s office in Madison parish a map, showing the-part of the land that had been laid off in lots and squares, and in -which he called same the town of Delta, and designated the interests therein of himself and associates, as well as the interest of E. B. Towne and Mrs. L. V. S. Ames.
In an act executed by John T. Ludeling before the recorder of Madison parish, he declared that the following named persons are his associates, and interested with himself in said prbperties, viz: Wm. E. Gordon, Prank P. Stubbs, John W. Klein, George C. Waddell, John Eay, W. J. Q. Baker, Oaks Ames, Joseph P. McGuire and Henry M. Bry, who joined said Ludeling in said act, and in which act was declared the respective shares, or interests of each in the whole of said property, and which are in the possession of said persons respectively — a tabular statement of which is annexed.
It is charged that “ said pretended succession sale was made for the purpose of consummating the previously formed agreement, whereby the aforesaid parties divided petitioner’s property' among themselves,” E. B. Towne claiming one-fourth, Mrs. L. V. S. Ames one-fourth, and Ludeling and his associates one-half, “without any consideration whatever.”
Said parties have sold portions of said property and received therefor $49,822 72, besides large donations therefrom to the N. L. & T. E. E. Co., worth $10,000 in addition.
“Now your petitioners show that all the aforesaid transactions were the attempted consummation of a fraudulent scheme, devised by said *631E. B. Towne, the said J. J. Garrard and his assigns, and the said John T. Ludeling and his associates * * to acquire the aforesaid valuable property of the estate of R. W. Bruney and Mrs. Eredonia Bruney, without paying any price therefor.”
Under suitable allegations each and every one of the various sales, alienations and judicial proceedings are charged to have been illegal, without price, or consideration, and absolutely null, and the parties bound in solido as co-tresspassers “for the restitution of the proceeds thus received, by each one of them, with five per cent per annum interest from the date of the respective sales and donations, as shown by the abstract of sales filed herewith.”
E. P. Stubbs, John T. Ludeling, Mrs. Kate E. Gordon, administratrix of the estate of W. R. Gordon, deceased, and F. P. Stubbs, administrator of the succession of Henry M. Bry, deceased, were alone cited by the two plaintiffs who claim two undivided fifths of the sums of money received, and of the lands remaining unsold, and their prayer conforms thereto.
Without pleading to the merits, the defendants, Katie E. Whitted, née Gordon, and John T. Ludeling, filed exceptions in limine, in substance as follows, viz:
1. That all the necessary parties have not been cited, viz: The parties to the various sales, and proceedings attacked, enumerating them; and that they are indispensable parties to the suit.
2. That the demands of plaintiffs’ petition are inconsistent — they sue to have the several sales and acts declared null and void, and also for a part of the price thereof; and they require plaintiffs to elect which demand they will imrsue.
3. That the petition shows that there ivas an open and incompleted administration of the estate of R. W. Burnoy, and that there were debts against the said succession and it is unaccepted by them.
That no tender or offer to return the price of sales has been made.
They pray that suit be dismissed.
F. P. Stubbs, individually, and as administrator of the succession of of H. M. Bry, likewise excepts on the following grounds:
1. That plaintiffs are without any right or authority to sue or stand in judgment, they claiming as part of the heirs of R. W. Burney, without alleging that the succession is closed, or that they have unconditionally accepted his succession; and there has been no settlement, and plaintiffs’ interest is not yet ascertainable, and their action is premature.
2. That as a condition precedent to their right to bring this suit a tender of the amount of $18,000, paid by Ludeling at succession sale should have been made.
*632Third and fourth exceptions are quite similar to exceptions I and 2, urged by the other defendants.
IT.
Por the purposes of this trial, these exceptions may be considered together.
They must be considered each with reference to the statement of facts we have taken pains to collate from the elaborate petition of the plaintiffs.
1. Of the objection that the two plaintiffs cannot sue for an undivided tivo-fifths interest in the property, without citing their co-heirs. This proposition is not supported by authority. 33 Ann. 586, Glasscock vs. Clark; 34 Ann., Carroll vs. Scherer; 5 La. 430; 40 S. 472; 3 La. 134; 2 La. 300.
2. The fact of the succession of the plaintiff's father and mother not having been fully administered, and the shares of the heirs ascertained and liquidated, is no ground of exception. This is not an open question. 32 Ann. 849, Tugwell vs. Tugwell; 33 Ann. 585, Glasscock vs Clark.
This suit is itself an unconditional acceptance thereof.
3. In quite a similar case this court said of a like exception ¡is to the want of a tender as a condition precedent to the institution of suit. “In a suit by the heirs for the recovery of property thus bought by the administrator, the tender of the price of sale, is not necessary as a condition precedent.
“ All that equity requires in such cases is to permit the administrator to claim the amount in voconvolition.” 33 Ann. 744, Heirs of Wood vs. Nicholls.
This case presents many quite similar, if not exactly like features, and we regard that doctrine applicable here.
It would not be equitable to allow plaintiffs to recover the property of their ancestors without making restitution of their proportionate share of whatever sum of money may have been actually realized from its sale and applied to the payment of the debts of the deceased. 30 Ann. 891, Sharkey vs. Bankston; 21 Ann. 385, Connell vs. Well; 23 Ann. 354-540.
On the other grounds of exception we agree with the district judge. The parties to the sales sought to be annulled should have been made parties to the suit in order that the relief demanded be available. 10 R. 387, Hyde vs. Craddock; 32 Ann. 106, Stockmeyer vs. Winder; 32 Ann. 92, Fickel vs. Guinault; 27 Ann. 365, Succession of Ricard.
We are likewise of the opinion that the defendants had the light to require the plaintiffs to elect which of their demands they would *633pursue— tlmt for the recovery of the property, or the price. The judgment appealed from is therefore annulled, avoided and reversed, and it is now ordered that this cause be remanded, and reinstated for further proceedings in conformity herewith, and that the defendants pay cost of appeal.