ÜN REHEARING,
STATEMENT OF THE CASE.
Monroe, <7,Plaintiffs and intervenor, claiming as creditors of the late II. M. Ilyams, prosecute this suit against Leon Lavedan, J. P. Dupont, and Laura R. I-Iyams, administratrix, for the purpose .of annulling the titles of the said Lavedan and Dupont to certain real estate in New Orleans, and having the same, with the rents and revenues thereof, brought into the succession of said Ilyams, and subjected to the payment of their claims; the averments upon which the action is founded being, substantially, as follows, to-wit:
That plaintiffs, as heirs of Ameron Ledoux, and intervenor, as ti'ansferree of Mrs. Camilla S. Lewis, are judgment creditors of said *335succession; that said ilyams died intestate, June 25, 1875; that .administrators have been appointed, who have, at different times, ■filed inventories, purporting to include all the property of the estate, .but which have not included the property herein claimed; that laura R. IJyams is the present administratrix, and was called upon to file this suit, but neglected to do so, and that the amounts due to the petitioners and intervenor are still unpaid.
It is further alleged that said succession owns “a tract of land ■containing- 22 19-100 acres, in the rear suburb Plaisance and St. Joseph, being the upper one-third of Section 8, Township 13 south, of Range 11 East; the entire section containing- 105 95-100 acres, •according- to a survey made by G. A. Grandjean, U. S. Surveyor, in 1888, approved by Calhoun Eluker, then Registrar of the United States Land Office,” which said tract is now in the possession of the defendant, Lavedan, who claims'to be the owner; and that said succession owns “Square 572, bounded by St. Anne, Orleans, Napoleon, or Ilennessy, and Alexander streets,” which is now in the possession ■of the defendant Dupont, who claims to be the owner, and that said defendants have no valid titles, and are possessors in bad faith.
It is further alleged that the life interest of said IT. M. ITyams in said property was confiscated and sold by the United States Government, and that, thereafter, to-wit, December 15th, 1868, by a general amnesty proclamation, said ITyams was pardoned*and restored to all his rights therein, save such life interest, and that, at his death, said property belonged to his succession, and could not be alienated, save by order of court, to pay debts.
It is further alleged that the administratrix, “and her co-heirS have taken possession of the estate, and especially of the above described property, * * * that said estate is insolvent and said heirs have no interest therein;” and that it is necessary to annul the titles in the names of said Lavedan and Dupont, and to have said property, held by them, returned to said estate, and sold to pay the debts due to petitioners and intervenor,” and they pray judgment accordingly.
By supplemental petition, it is alleged that after the confiscation of said property, IT. M. Ilyams made a simulated sale of it to I. S. Ilyams, and that the simulation was declared by judgment rendered February 21st, 1878.
There were, originally, separate suits filed, against Lavedan and *336Dupont, but they were afterwards consolidated, and the contest appears to be, now, concentrated upon the claim for the property held by Lavedan, a conclusion as to which will be determinative of all issues presented, and will serve as the basis for the judgment in the consolidated cases.
Defendants plead the prescription of. ten years, liberandi causa; of three months, and of three, five and ten years acquirendi causad-res judicata, and estoppel; and allege that their titles are valid, and that they have been -in quiet possession under them for more than ten years.
We find that the following facts are either admitted or established' beyond controversy, to-wit:
II. M. Hyams and his wife died in 1875; their successions were duly opened, in one proceeding; their son, I. S. Hyams, qualified as administrator, and, upon February 14th, 1871, filed a provisional account in which he recognized Ameron Ledoux and Mrs. Lewis as creditors, but did not mention the property in controversy in the present litigation, as belonging to the succession. This account was opposed by Mrs. Lewis and.by the Planters’ Association, upon the ground, among others, that it did not set forth all the property belonging to the succession, and the opponents, in their oppositions, divided the property said to have been omitted into two classes, to-wit: * i
FIRST CLASS. Property which appeared to have been sold by II. M. Ilyams to Isaac S. Ilyams, his son, the sales, it was alleged, being simulated.
SECOND CLASS. Property which had belonged to II. M. Hyams, which had been confiscated and sold by the government, and which Isaac S. Ilyams had bought from the purchasers at the confiscation sales; his purchases being ratified by II. M. Ilyams. These purchases, it was alleged, were made for the use and benefit of said II. 1\L Hyams, and it was further alleged that the purchasers, at said confiscation sales, acquired only the -life interest of said II. M. Ilyams, and could sell no more than they had acquired; that neither their sales, nor the ratification of II. M. Ilyams could convoy title (in fee simple) to Isaac S. Hyams, but that, at the death of the coufiscatee, the life estate, or usufruct, and title (in fee) became united and reverted to the estate of the confiscatee, and became subject to the claims of his creditors.
*337In this division, the property which is the subject of the present controversy is specified, and is included in the “First Class.” The accormt was approved and homologated, so far as not opposed.
We note here, in order that it may appear in its chronological ■order, the following, as among the admissions agreed on by counsel, to-wit:
“On June 1, .1877, W. W. King appeared in court for Isaac S. Hyams and others, and took a rule to cancel the city and State taxes, and, in this rule, it was claimed that they were the sole heirs of Henry M. Hyams, and that, as such sole heirs, the property had reverted to them; and, on July 10, 1877, judgment was rendered on. said rule cancelling the taxes, as prayed for.”
Upon August 29, 1877, Isaac S. Hyams executed atr act of renun* ciation, in which, after specifying certain pieces of property, including the property in controversy, he says, concerning it: “Having been confiscated and sold by the United States Government as that of TL hi. Hyams, reverted, by the latter’s death, exclusively to his heirs " * in whose favor, therefore, the present holder, the undersigned, hereby renounces every claim or title to its ownership.” This act was recorded in the mortgage and conveyance offices, August 30, 1877.
The oppositions of Mrs. Lewis and of the Planters’ Association were not acted upon until February, 1878, when judgment was rendered for which the judge handed down his reasons in writing.
Referring to the property for which the movers had called upon the administrator to account, he said:
“Tt seems to me very clear that the properties of the first class, designated by opponents, belong still to the succession of IT. M. Hyams. The sales thereof, made by the late IT. M. Hyams to his son, I. S. ITyams, are shown to have been simulated. I do not believe that the Honorable Governor Hyams made them with a view of defrauding his creditors, but merely to place them, if possible, beyond the reach of the United States Government, through the confiscation laws. From the evidence on record, I judge that these sales were not intended to have any other effect, and that they must be taken as simulated, and the property must be inventoried or accounted for herein. Not so, however, with those of the second class, the decision of our Supreme Court notwithstanding. By the seizure, condemnation, and *338salo of these properties, all estate or interest whatsoever, which the late IT. M. ITyams had therein, was taken away from him. The purchase of these properties by I. S. Ilyams from the purchasers at the confiscation sales did not vest the fee simple of the same in him. Those vendors could not give any such title. At the death of IT. M. ITyams, his children took these properties, which were once his, by virtue of the statute and the express reservation in the Federal Constitution, and they can not now be brought in the succession of IT. M. Hyams, through whom they do not descend to his heirs. They may be burdened with the debt of ITyams, Sr., contracted before their confiscation and sale. This I am not called on to determine. If they are, this is not the forum in which opponents can exercise the rights which they have. They must go before a court of ordinary jurisdiction. Such seems to me to be the import of the decisions of the Supreme Court of the United States on this subject matter.”
The decree, in so far as it relates to the subject under consideration, reads as follows, to-wit:
“Declaring * * '* the sales, described in said oppositions herein, made by the late H. M. Hyams to said I. S. Hyams, administrator, to be simulated and that the properties now form part of the estate of said IT. M. ITyams, and that the said account be further amended by including the same in the assets of this succession, and that in all other respects, the said oppositions be dismissed.”
This judgment was signed February 27th, 1878, and no appeal was taken therefrom. Shortly, afterward, to-wit, March 22nd, 1878, Mrs. Lewis, through her counsel, took two rules on the administrator, the one to show cause why his property should not be “distrained until he complied with the judgment and order of court;” and the other to show 'cause “why execution should not issue against him, under which his property to a sufficient amount to pay said judgment in favor of relator should not be seized and sold.”
Whilst these rules were pending, and, apparently, to enable the court to obtain information, which it needed in order to dispose of them intelligently, Mr. J. B. Gervais Arnoult was “appointed as expert to examine and report in writing, (1) What properties belonged to IT. M. Hyams at the time proceedings for confiscation were entered against him in the United States Court.”
“2. What properties belonging to him were actually confiscated in those proceedings.
*339“3. What properties were actually seized by the marshal, under his writ of venditioni exponas, and,
“4. What properties were actually sold thereunder by the marshal.”
This expert made a report, which was homologated at the instance of the counsel representing Mrs. Lewis, August 12, 1878, and, upon September 18th, following, the two rules taken on behalf of Mrs. Lewis were dismissed, for reasons given in a written opinion in which the judge said, after stating that the demands for the writs of distringas and execution were conflicting: “Nor can either be issued. .For we have now ascertained what property belongs to the succession by the homologation of the expert’s report under the judgment rendered by this court February 21st, 1878. The administrator may easily be compelled, now, to inventory that property, and even if he refuses to do that, the sale of the same may be provoked for the purpose of paying the claim of the relator.”
The report of the expert is not before us, but that he reported that the property which is here claimed had been confiscated and sold by the United 'States Government, and, hence, that it was held by the court not to belong to the succession, follows, necessarily, from the reasoning which led to the judgment on the oppositions; from the action of the court appointing an expert, for the purpose stated, and in homologating his report; and from the specific allegations already mentioned, and admissions of the plaintiffs and intervenor. Thus, the following are distinct admissions, made at different times, during the progress of the trial, which we find.in the record.
“It is admitted by all parties to this suit that the life interest to the property involved in this suit was confiscated by the United States Government, under decree of condemnation and sale, and was actually sold by the United States Marshal under such decree.”
*■*•** -K- *
“VIII. ' On February 27, 1878, judgment, on the oppositions of the Planters’ Bank and Mrs. Cammilla S. Lewis, was rendered, decreeing ‘that all the property which had been confiscated did not form part of the succession of ITenry M. ITyams (see judgment on oppositions and reasons for judgment, filed in the record), and that the simulated property did belong to it.’ ”
'It is further admitted, not only that the property in question was not on the account filed by I. S. Hyams, February 14th, 1877, but *340that it was never mentioned, “as an asset of the estate, in any of the other accounts filed/’ and was not included in either of the inventories filed in 187S, 1894, and 1890 respectively. And it is further admitted that T, S. Ilyams, administrator, filed a second account, April 3rd, 1879, and a third May 29th, 1879, and that the account last mentioned was opposed by Ameron Lecloux. But, neither the account, the opposition, nor the judgment thereon are in the record, and the admissions do not inform us as to the purport of the opposition.
It is admitted that I. S. ITyams died in June, 1883, and that, in September of that year, his brother, Ingram R. Ilyams qualified as administrator of the succession of H. M. ITyams and wife. It is further admitted:
“That, on April 24, 1884, in the suit entitled Hyams vs, Hyams, No. 11,245 of the Oivil District Court, Division D., Henry M. ITyams and Ingram R. ITyams, two of the children and heirs of the late Henry M. ITyams, Sr., and wife, brought suit against the other heirs of the late TTenry M. Ilyams and wife, praying for a partition by limitation (?) (lieitation) of the various pieces of property mentioned in the petition, including the property involved in this suit. In this petition, it is averred that, the above property having been confiscated and sold under Act of Congress, approved July 17th, 1862, in the suits Nos. 7685 and 8025 of the docket of the United (States District Court of Louisiana, and, at the present time, in the name of I. S. ITyams by purchase of the confiscatee’s title thereto, from various persons.”
Judgment was rendered in this partition suit, and signed June 14, 1884. The partition was decreed, the property was ordered to be sold, separately, and the parties were referred to Eustis, notary, for the settlement of their respective claims, and the distribution of the proceeds. Agreeably to this judgment, the property in question was sold at public auction, by W. I. Hodgson, auctioneer, July 19th, 1884, and was adjudicated to Henry M. Ilyams (son of the decedent) and Francis R. Wall, an undivided half interest to each, and acts of sale, pursuant to this adjudication were executed by the auctioneer, in favor of TTenry M. ITyams and Francis R. Wall, the adjudicatees, February 13th, and March 5th, 1885, respectively.
Between the dates of the adjudication above recited and of the acts of sale confirmatory thereof; the inscriptions of the judgments in *341favor of Ameroii Ledoux and of Camilla S. Lewis, which had been recorded to operate as judicial mortgages against II. M. Hyams, were cancelled, as appears from the certificate of the recorder, upon September 16th, and December 27th, 1884, respectively, by virtue of orders of the Civil District Court, so that, at the'time of the execution of the notarial acts of sale to lí. M. Hyams, Jr., and Francis R. Wall, the judgments in favor of the plaintiffs and the intervenor were no longer inscribed as mortgages against II. 1VL Hyams, Sr.
The interest thus acquired by H. if. Iiyams, Jr., was sold November 22nd, 1890, by Wm. R. Rutland, testamentary executor, at public auction, under an order of the court rendered in the matter of the succession of the said Hyams, and was adjudicated to Fergus ICernan; and an act of sale, in confirmation of said adjudication was executed by said Rutland, Executor, before S. G. Laycock, notary public, at Baton Rouge, April 9th, 1891,
The interest acquired in said property by Francis R.'Wall was sold by him to Furgus Hernán by act before L. J. Weatherwax, a notary, at Aberdeen, in the State of Washington, February 18th, 1891, which act was registered in New Orleans, July 27th, 1893.
Hernán subsequently sold the property to Dickson, and Dickson sold to Lavedan, the defendant in this suit, by act of date October 24, 1893, and, concurrently with the execution of this act, Lavedan executed a waiver of warranty of title, which was registered upon the same day, and which reads as follows:
“Now, in consideration of the smallness of the price paid for said property, and the further consideration, that the said vendor has executed in my favor a bond with good and sufficient securities in the sujn of five hundred dollars, by which he obligates himself to procure the cancellation of an outstanding title to a certain portion of the property conveyed; and in consideration of the fact that in the agreement for the sale of said property Sáid conveyance was intended to be a quit claim deed, and to convey only such title as the vendor ■possessed, I do, by these presents, release said William A. Dickson and his vendor, Fergus Hernán, from any obligation of warranty stipulated in said act of sale to me, and from any and all obligation to warrant the title of said property (I, being fully acquainted with said title) except as against their own acts.”
As to this waiver, and as to the possession of Lavedan and his *342authors, we find in the record, the following evidence, to-wit: Mr. Ory testifying, says:
“I approved the title, except in so far as related to a number of.' tax inscriptions and adjudications to the city, which I knew existed, against the property and were then in the course of cancellation in the case entitled Henry Oharnock vs. The City of New Orleans.”
This testimony was objected to, and the latter part of the witness’" statement was excluded on the ground that, a written instrument should speak for itself, unless there is: some ambiguity in its terms which requires explanation. The witness then goes on to say: “I would, state that Mr. Lavedan accepted the title entirely on that statement to him that the title was good and that he could take the same. He acted, entirely upon my legal advice, and never has had any adverse opinion, by me, on the subject, as his attorney.”
In this connection; it is admitted:
“That in August, 1893, Henry Oharnock brought suit against the city of New Orleans, the State Tax Collector, and the Attorney General, to have all State taxes and all State tax sales and adjudications cancelled and annulled from the books of the conveyance office of this parish, and the suit was still pending when Dickson sold to Lavedan, on October 24th, 1893.
“William A. Dickson had intervened in the suit for cancellation and was a party thereto. Judgment in favor of the plaintiffs and intervenors, cancelling all tax inscriptions, was rendered on the twenty-third day of February, 1894, clearing the property of all tax adjudications and tax privileges.”
Lavedan testifies as follows:
“Q. Did you have the title examined by any one?
“A. Yes, sir.
“Q. Involved in this case?
“A. Yes, sir.
“Q. What did the attorney report, that it'was good or bad?
“A. That it was good.
“Q. How much did you pay for the property?
“A. $6000.00.
“Q. You purchased the property on his report?
“A. Yes, sir.
*343“Oross-ExamiNatioN.
“Q. By wliom -did you have the title examined ?
“A. By Mr. Ory.”
Upon the subject of the possession, Mr. Neman says:
“A day or two after suit No. 17,057, (filed March 2, 1886,) of the docket of the Civil District Court, entitled, 'In r& Thomas Behan,’ was filed, the late IT. M. ITyams, Jr., and myself were called on by the persons who 'were threatened with eviction by Thomas Behan in that suit, to defend their possession. The late TI. M. Hyams, Jr., was approached in this connection, and afterward acted as representing his own undivided half interest in the Lavedan property— the property sued for, in this case, and I was called on, and so acted, as the representative of Francis It. Wall, claiming- to be the owner of the other undivided half interest of the Lavedan property, the property described in this suit. At the solicitation of these people, who were thus threatened with eviction by said Thomas Behan in his application for a writ of possession under his tax title, under Act 82 of 1884, H. M. Hyams and myself, as attorneys of persons claiming to be the owners of the Lavedan property, the property involved in this suit, applied for and obtained a writ of injunction, for matters set forth in said petition which is made a part of this statement. These persons, at that time, were holding possession of the land as tenants of the late I. S. Hyams, one of the authors of II. M. Hyams, Jr., and F. B. Wall, and agreed, thereafter, to hold possession of said land as the tenants of H. M. Hyams, Jr., and F. B. Wall. Shortly after judgment was rendered in this suit, the said II. M. ITyams, Jr., F. B. Wall, and myself went to section 8, where these people were living, and made leases with them, which leases have never been terminated to my knowledge. All of these people, these tenants, were living on that portion of the land situated on the other side of the Claiborne Canal. Afterward, on December 24th, 1889, William B. Butland, testamentary executor of the late LI. M. Ilyams, Jr,, and myself, put a wire fence around that portion of the Lavedan property situated between Claiborne street and its inside boundary towards the river, say, at Locust street (now South Bob-ertson), since which time I have been in actual possession of that part of the land, as representing-, first F. B. Wall and the estate of II. M. Hyams, Jr., and afterward as representing Leon Lavedan, and *344during' my time of possession as such representative, have rented it as a pasture, -first, to Paul Bernard, and afterward to E. L. Ranee, The persons who were in possession at the time of tire above mentioned visit, made by the late II. II. Hyams, <Tr., F. R. Wall and myself, are those whose names are mentioned on the slip of paper in the handwriting- of the late H, M, Hyams, Jr., annexed to, and made part of, the statement marked “A.” Some of those persons are dead; some of them were living on the land at the time of our visit; and, from last accounts, are living there yet, for example, James Wilson, Harrison Cooper, and William Page. In addition to the above, I will say that, immediately after the adjudication of the property to-IT. II. Hyams, Jr., and F. R. Wall, Hyams, Jr., and I went to the laud and told as many of the occupants as we could find that we had bought the land; that they could occupy it and cultivate it, paying-therefor, a nominal rent, which they all promised to do, and some did actually pay rent to Iiyams, Jr., in vegetables. The land was, and is yet, swamp laud, and the occupants were colored people, who raised vegetables, when their crops were not destroyed by overflow.”
There are still other admissions and facts to be found in the transcript, which may be noted. It is admitted, by counsel for the administratrix and for. the heirs, that the property herein claimed, belonged formerly to the late II. M. Iiyams and Laura M. Hyams, his wife. But, so far as we are able to gather, from an unusually confused transcript, there was an undivided one-sixth interest in the property, which may have remained vested in George May, thus:
Thomas Winston sold the entire property to II. M. Iiyams and George May, in the proportions of an undivided half interest to each. George May sold an undivided one-sixth, thus acquired, to his co-purchaser, Hyams; and another undivided one-sixth to Patrick Irwin. Irwin sold the one-sixth, thus acquired by him, to Beard, and Beard sold it to II. M. Hyams, Sr.
But, if May ever parted with the other one-sixth interest which he had acquired from Winston, this record fails to show it. II. M. Hyams, Sr., as it thus appears, acquired five-sixths interest in the property, and the other one-sixth, for aught that appears here, remained vested in May.
Nevertheless, Beard, who had already sold to II. M. Iiyams the one-sixth which he had acquired from Irwin, and which, so far as the record discloses, was the only interest which he ever acquired *345from any one, at a later period, after the death of H. M. Ilyams, Sr,, undertook to make over to Isaac S. Hyams, by way of an exchange, still another one-sixth interest in the property in question.
In 1867, after the confiscation proceedings against him, and before the amnesty proclamation, H. M. Hyams, Sr., executed an act of sale, to ’Koskiusko R. Ilyams, of the one-third, or two-sixths interest in the property, which he had acquired from May and Beard.
The act from II. M. Hyams, Sr., to Isaac S. Hyams, executed before Cuvellier, notary, May 4, 1866, does not include the Lavedan property, though apparently offered for the purpose of showing that said property was sold by II. M. Hyams, Sr., to Isaac S. Hyams.
It has already been stated that, upon August 30th, 1877, Isaac S. Hyams executed and placed on record, ah act of renunciation, in winch he declared that this, and other property, had been confiscated as against H. M. Hyams, Sr., and, upon the death of the latter, reverted to his heirs, in whose favor he renounced, but it does not appear from this instrument, from whom he acquired the title thus renounced.
The record further shows that, upon May 22, 1884, by an act before Fergus Kernan, notary, Ingram R. Hyams conveyed a one-sixth interest in the property in question to F. R. Wall, the act containing this recital; “the same being the share acquired by the present vendor by reversion, by reason of the confiscation of an undivided half interest by the United States Government (title unrecorded) and by reason of the renunciation of Isaac S. Hyams of the other undivided half, conveyed to him by his father,' Henry M. Hyams, January 2, 1868, --one-sixth of the said property being the share inherited by the present vendor from his brother, Richard Hyams, who died intestate in February, 1879,” etc.
In June, 1894, Laura R. Hyams (a daughter of Henry M. Hyams, Jr.,) became administratrix of the succession of her grandparents, and, upon August 31, 1896 (as Mrs. Laura R. Hyams Thomas), filed an account, upon which she did not specifically mention either the claim of the plaintiff, or the claim of the intervenor, nor did she place thereon the property in question. The account, however, contained the recital: “It is proposed to pay the balance shown on this account to F. L. Richardson, attorney, as representing the only known creditor of this estate.” And this account was homologated without opposition. Another account was filed by her, September *3469th, 1897, and likewise homologated. The present suit had, however, in the meanwhile, been filed, March 23rd, 1896.
OPINION.
It will be seen from the report of this case, upon its first hearing in this court (see 49th Ann., 913), that the question was considered, whether the judgment of the late Second District Court, rendered upon the opposition of Mrs. Camilla S. Lewis, the transferor of the present intervenor, demanding that the property in question should he brought into the succession of Ií. M. Hyams, did not constitute res adjudicaía, as to the present demands, as well as of plaintiffs as of the intervenor, and it was held in substance, that the plea (of res adjudicaía) was good, as against the intervenor, provided the property here claimed could he identified as confiscated property, since the judge of the Second District Court had decided that confiscated property, did not belong to, and should not he brought into, the succession. The following extracts from the opinion of this court will serve to present the matter clearly. It was said:
“There is a disagreement among counsel as to what property is involved in this litigation. No deed containing a description of liroperty has been introduced in evidence, and no attempt at identification of property by evidence was made. All the property designated as property of the “first class” is not clearly identified. The same is true of the property designated as property of the “second class;” i. e., the property which had been confiscated, does not appear to have been segregated from the property which was not confiscated. The difference as to the two, as to title, was a subject of argument at the bar. We have seen that the judgment rendered in 1878 decreed the first — the property of the first class, property of the succession, and dismissed the opposition as to the property of the second class. With the evidence before us, and in view of the allegation made in the pleadings, we can not determine, with any degree of accuracy, what property is included in the first class and what property is in the second class. We will, notwithstanding, pass upon the issue of law involved.”
And the court proceeded to hold; that the Second District Court had jurisdiction tó determine the issues presented by the opposition of Mrs. Camilla S. Lewis; that Mrs. Lewis had authority to stand *347ill judgment for the purposes of that opposition; that she had invoked the jurisdiction of the court; that she had not appealed from the judgment .rendered; that she was hound by that judgment; and that it constituted res adjudicata, against any claim which might be set up by her transferee, affecting property belonging to the second class. Upon application to modify the decree, it was said, as it had before been said, in substance, “we have, in view of conflicting allegations in the pleadings, and insufficiency of the evidence, declined to determine whether the properties involved belonged to the first or second class.”
The case now comes up to us, with the pleadings still containing the allegation that “the lifetime interest in said property was confiscated and sold,” but amended to the extent that it is now alleged “that, after the confiscation of the life estate in and to the property herein claimed, as set forth in the original petition, the deceased II. M. Iiyams caused a simulated sale to be made of said property to T. S. Hyams, also deceased. That said simulation was declared by judgment of this Honorable Court, as will more fully appear by reference to a copy of said judgment and the reasons thereto attached, herein filed. That said property was ordered to be restored to said succession, but said judgment has never been carried into effect.”
The judgment thus referred to, the reasons for the judgment, and the opposition which provoked it, in which latter the classification of the property was made, are all to be found in the transcript previously filed. Nevertheless, as the plaintiffs and intervenor alleged specifically, that the property claimed by them was confiscated property, whilst from the classification, in the opposition, it was ranked as property which had not been confiscated, but had been, as was said by the judge of the Second District Court, in his reasons for judgment — covtered with a simulated title, merely to place it “if possible, beyond the reach of the United States Government, through the confiscation laws,” it was held that it was not sufficiently identified, and the ease was left open upon that, and other points. .
On the present appeal, we have, it is true, the amendment to the pleadings, which has just been mentioned, but, upon the other hand, we have also, a repetition of the allegation, in the amendment itself, together with distinct admissions made in the course of the trial, that this particular property was confiscated and sold by the United *348States Government; and, beyond this, we have the fact, disclosed in the present record, that the judge of the -Second District Court did not, himself, consider the classification in the opposition of Mrs. Lewis as identifying the property and fixing its status for the purposes of the judgment rendered by him on that opposition. For, he, thereafter, appointed an expert to examine, and report in writing:
“1. What properties belonged to II. M. Iiyams at the time proceedings' for confiscation were entered against him, in the United States Oourt.
“2. What properties belonging to him were actually confiscated in those proceedings.
“3. What properties were actually seized by the marshal, under his writ of venditioni exponas, and,
“4. What properties were actually sold thereunder by the marshal.”
The report of this expert was homologated, as the record shows, upon the motion of the counsel representing Mrs. Lewis, and it was .that report, thus homologated, which was regarded as identifying and differentiating the property for the purposes of the judgment on the opposition. That this is true, is apparent from the language used by the judge, in dismissing the rules taken by Mrs. Lewis for writs of distringas and execution, for, he says, referring to said writs:
“Nor can either be issued. For we have now ascertained what property belongs to . the succession, by the homologation of the expert’s report, under judgment rendered by this court * * * the administrator may easily be compelled, now, to inventory that property, and, even if he refuses to do that, the sale of the same may be provoked for the purpose of paying the claim of the relator.”
If, the opponent had any objection to urge, to the effect that (by the appointment of an expert, for the purpose stated, and by the homologation of his report, which determined what properties, in-, eluded in the two classes mentioned in the opposition, belonged to the succession, and what did not),, the court was placing an unauthorized construction on the judgment which had been rendered on her opposition, she ought to have urged such objection at the time. Instead of doing so, however, she, through her counsel, moved to homologate the expert’s report, thus acquiescing in the construction which the judge placed upon his own judgment. And, in the record *349before us, we find an admission, made for the purposes of the present trial, indicating a continued acquiescence in that construction. It has already been cited in this opinion,, and reads:
“VIII. On February 27th, 1878, judgment on the oppositions of the Planters' Bank and Mrs. Camilla S. Lewis was rendered, decree-: ing that all property which had been confiscated did not form part of the succession of Henry M. Ilyams (see judgment on oppositions and reasons for .judgment, filed in the record), and that the simulated property did belong to it.” • '
(The italics are ours).
The construction placed by the judge who rendered it, upon the judgment on the oppositions of the Planters’ Bank and Mrs. Lewis, was itself, in the form of a judicial proceeding, resulting in a judgment, invoked by Mrs. Lewis and acquiesced in by her. It is too late for her transferee, now, to claim that the judgment thus construed spoke for itself, and that the judge was without authority to interpret it, as he did, and, as Mrs. Lewis herself, and the intervenor, her transferee, have continued to interpret it, for more than twenty years.
We, therefore, conclude that, it being admitted that the property here claimed was among that property of the late II. M. Ilyams which was confiscated and sold, said property fell into the class which, in the contemplation of the judgment of the Second District Court, upon the opposition of the intervenor’s transferor, did not belong to the succession of said Ilyams and was excluded therefrom by said judgment; and hence, that the plea of res adjudícala, heretofore maintained by this court as against the claims of the intervenor applies to said property, and cuts the intervenor off from the further prosecution of the claim here asserted.
As to the claim of the plaintiffs, it was held in the original judg-' ment of this court, for reasons which need not here be recapitulated, that the judgment upon the opposition of the Planters’ Bank and of Mrs. Lewis did not constitute res a.djudicata. Otherwise, said claim comes before us upon this second appeal, upon all the issues presented by the pleadings. And the judgment heretofore rendered, and with respect to which the rehearing was granted, was given for the defendants upon the grounds, that the confiscation of the property left the title in nubibus until the death of the confiscates, when *350it reverted to the heirs; the following qualifications, however, being added, to-wit:
“But, if this be considered a doubtful proposition, it seems perfectly clear that the creditors of the confiscates- having acquiesced in. the possession of the heirs, through a long series of years, without question or complaint, are equitably barred and estopped from disturbing titles derived from them.”
In discussing the ground last above mentioned, the counsel for the- plaintiffs, in their brief for rehearing, say:
“There was on record the claim and judgment to this section 8, decreeing that the succession owned it. There was no actual possession within the prescriptible period of ten years. See R. No. 2, pp. 30, 110, 111. There was the waiver of warranty, p. 100, doing away with the good faith necessary for this prescription. There was a vile price paid by the heirs for property worth $6000, which was the amount afterward paid by the defendant, Lavedan.”
Considering these propositions in the order in which they are stated, we have, in this opinion, already reached the conclusion, and given the reasons therefor, that there has been on record since 1878 no claim to the property in question as a succession property, and no judgment decreeing it to he such. We think that the judgment, as rendered upon the opposition of the Planters’ Bank and Mrs. Lewis, was construed by the judge who rendered it (in another judgment of equal force and effect and of a later date), to exclude said property from the succession, and that said construction'was invoked and has been acquiesced in, by the parties interested, for more than twenty years, and that it is now too late for them to question either its authority or its correctness. But, in any event, how can the plaintiffs, who, by the judgment of this court rendered upon the first appeal, were sustained in the position that the judgment which they invoke was of no binding effect as against them, now claim it to be binding, in their favor, as against the other parties to this litigation ?
Upon the question of possession, we are referred to Record No. 2, pp. 30, 110, 111. Referring to those pages, we find:
Page 30. The testimony of Mr. Ory, who states, that there is a little shanty on the property, which was there before Lavedan’s acquisition, but how long before he does not know; and that “there is also a barbed wire fence around this property which has been there for *351seven or eight years,” put up, as he believes, by one of the tenants of Mr. Hyams or Mr. lemán. Pages 110, 111. We here find the testimony of Mr. lemán, which has already been quoted, in extenso, and in which he says, among' other things;
“In addition, I will say, that immediately after the adjudication .of the property to H. M. Hyams, Jr., and E. R. Wall, Hyams, Jri, and T, went to the land .and told as many of the occupants as we could find that we had bought the land, that they could occupy it and cultivate it, paying therefor, a nominal rent, which they all promised to do, and some did actually pay rent to Hyams, Jr., in vegetables. The land was then, and is yet, swamp land, and the occupants were colored people who raised vegetables when their crops were not destroyed by overflow.” He further testifies that he acted as the representative of E. R. Wall and of the estate of H. M. Hyams, Jr., and, later, of Lavedan; that a few days after the 2nd March, 1886, he was called on to defend the possession of the property as against an attack by Thomas Behan, who claimed possession, under a tax title, and that he sued out an injunction, which was subsequently maintained; and that in December, 1889, he and Rutland, the executor of Ii. M. Hyams, Jr., caused a wire fence to be built around the land.
We have seen that the adjudication to Hyams and Wall was made July 19, 1884, whereas the present action was not filed until March 23rd, 1896. So far, therefore, from its appearing, from the evidence to which we are referred (and there is no other evidence on the subject in the record), that there has been no possession by the defendants, it seems that they were enjoying and exercising the rights of owners in possession for nearly twelve years before the plaintiffs filed this suit.
It is said that there was a vile price paid by the heirs, to-wit, $300 for the property worth $6000, the latter amount having been paid by Lavedan. There is nothing in the record to show that this property, which is swamp land, was worth more than $300 in 1884, and still less is there anything to show that, as swamp land, the title to which was burdened with tax inscriptions and adjudications, any one could have been found, at that time, to pay $6000, or any considerable sum for it. If the contention, on behalf of the plaintiffs, that this property, under the judgment of the Second District Court, belonged to the succession of II. M. Ilyams, their debtor, and that it was worth *352$6000, be correct, the question naturally arises, why did they not have it brought into the succession and sold, and, if the administrator stood in their way, why did they not have it sold, to pay the debt due them, without his assistance. The judge having jurisdiction in the premises had said, as far back as September, 1818, “the administrator may easily be compelled, now, to inventory that property (i. e., property belonging to the succession), and even if he refuses to do that, the sale of the same may be provoked for the purpose of paying the claim of the relator.” It seems not unlikely that the question thus propounded is to be answered by saying, either, that the plaintiffs acquiesced in the view that this property did not belong to the succession of their debtor, or else, that it did not promise, at that time, to realize enough to pay the cost of an attempt to sell it. That, after the lapso of a decade or more, with tenants secured, and with a prosxject of clearing it of tax inscriptions and adjudications, it should sell for $0000, does not prove that, without such advantages, it was worth more, when adjudicated to them, than Ilyams and Wall paid for it. If it had'been worth more, as it was sold at auction, it would probably have realized more.
It is urged that Lavedan’s bad faith is evidenced by his waiver of warranty. The evidence fails to show that this waiver had anything to do with the title in so far as it is here attacked. Reference is made in the waiver to an outstanding title to a portion of the property, as to which the vendors were naturally unwilling to warrant; there were also tax inscriptions and adjudications, and with respect to these matters the purchaser is shown to have been put on his guard, to the extent at least, that his legal adviser was aware of their existence. But the latter testifies that he knew of no danger to arise as this claim has arisen, and apprehended none, and so advised his client. And he further testifies, being asked the question, that he does not think that the property, if put up for sale, would bring more than $5000 at this time (the time at which he gave his testimony). The outstanding title referred to, is, perhaps, the one-sixth interest which George May is not shown to have parted with.
The learned counsel for 'plaintiffs, in their briefs, denying that the plaintiffs have been guilty of laches, propound the question, “what single act can be pointed out as an estoppel?”
The evidence shows that Ameron Ledoux obtained judgment against II. M. ITyams, in May, 1866, and recorded it, June 2, 1868; *353that, in February, 1876, he filed a suit to revive said judgment, which suit was transferred to the Civil District Oourt nearly twenty-one years later, to-wit, November, 1896, and remains untried up to the present time. So fár as appears from the record, there has been no reinscription of the judgment since June 2, 1868; the original inscription has been cancelled, and certificates from the mortgage office fail to show said judgment, as a mortgage against Ií. M. Iiyams or any one else. When the heirs of H. M. Hyams undertook to effect a judicial partition of the property here in controversy, •outside of the succession, nearly six years had elapsed since the court having- jurisdiction in the premises had rendered a judgment which (as we must conclude, for the reasons which have been stated) jjiistified them in pursuing that course. During that time, no effort was made by the plaintiffs to recover their claim out of said property, nor did they even keep alive the judicial mortgage which might have been claimed to bear on it. For, whilst it may be true that prescription has not run as against their claim, upon the theory that the succession has been under administration, it is also true that the inscription of the mortgage perempted for lads of reinscrip* tion.
Sorrels vs. Stamper, 27th Ann., 630.
Tilden vs. Succession of Morrison, 33rd Ann., 1067.
Succession of Myrick, 43rd Ann., 884.
The partition was ordered by a court of competent jurisdiction, the property was sold at public auction and adjudicated to the highest bidder, and, thereafter, during another period, of nearly twelve years, it was resold several times, until it finally came into the hands of the defendant, and, during all this time, nearly eighteen years, the plaintiffs remained silent, until the property, which had been worth practically nothing, had been sold to the defendant for $6000. They made no effort to have it sold in the succession, which they could readily'have done if their theory as to its status is correct; nor did they make any effort to subject it to their claim, outside- of the succession, but, oi^ the contrary, allowed the inscription of their judicial mortgage against all the property of their debtor to expire by limitation, so that it was cancelled, by order of court, as void and lifeless.
In Benedict vs. Bonnot, 39th Ann., 972, the syllabus reads: “If heirs and creditors remain silent and inactive, and permil the prop*354erty to pass, by a public sale, into the hands of strangers, purchasers and third persons accepting title from them are fully protected.”
This doctrine was affirmed in Weil vs. Schwartz, 51 Ann., 1551, and finds abundant support in-the authorities cited in the former opinion of this court on this, second, appeal.
These reasons would perhaps be sufficient for the purposes of the judgment to be rendered, but there are still other grounds upon which it might safely be placed, and which will bé briefly considered.
We have seen that, as early as’June 1, 1877, Isaac 'S. Ilyams and others, appeared in court through W. W. King, Esq.,, their attorney, and took a rule, to cancel State and city taxes, in which “they claimed that they were sole heirs of Ilenry M. Ilyams and that, as such sole, heirs, the property had reverted to them; and on July 10, 1877, judgment was rendered on said rule, cancelling taxes as prayed for.”
We have also seen that in 1884, there was a suit between the heirs for a partition of property which had belonged to Henry M. Ilyams, and which, they claimed, had reverted to them upon his death, by reason of the fact that they were his heirs.
In Brashear vs. Connor, 29th Ann., 347, the syllabus reads: “The institution of a suit in the capacity of heir, * * * amounts to an acceptance of the succession, pure and simple,” etc.
In Sevier vs. Gordon, 29th Ann., 440, the Succession of James G. Gordon was administered by the executor named in the will until 1867, and ’after that, by a dative executor. In the meanwhile, in December, 1808, two of the heirs brought suit against the others for a partition, and there was a partition accordingly. During this time, and afterward, John V. Sevier was prosecuting a claim upon which ho obtained judgment, contradictorilly with the dative executor, which judgment was affirmed by this court in 1870, the dative executor being discharged in 1871. Sevier then sued Mrs. Inez R. Gordon, the wife of John Gordon, one of the heirs (who, under a judgment of separation of property, had purchased his interest in the estate), to recover his virile share of the debt due him, upon the ground that, by purchasing her husband’s interest, she assumed his portion of the debts of the succession.
In the opinion of the court, it was said, among- other things: “In this case, the heirs provoked a partition and went into possession. *355The succession thereupon ceased to exist. If there could be any doubt as to the effect of the demand for a judicial partition, the actual partition and the taking possession of the heirs of their respective shares constituted a plain and unequivocal acceptance; and the separation of patrimony was never demanded, nor was any security demanded of the heirs. The consequence is, that the creditors of the succession have become, thereby, the creditors of the heirs, each for his virile share, and they have the same .rights as any other, ordinary, creditors of the persons who are the heirs. These principles are elementary, and it was necessary to enunciate them, only to prepare the way for the consideration of the two grounds upon which the plaintiff relies.”
“First. By the partition, * * * the specific part of the Verona Plantation, which fell to John Gordon, became absolutely his property, with the title vested in him. It was thenceforth liable to seizure by his creditors, without distinction; and it was seized * * * and sold * * * at the instance of his wife, his judgment creditor * * *. Plaintiff had no mortgage, no lien, no privilege, no right of preference on the property, etc.”
In Succession of J. O. & Anne McCall, 28th Ann., 713, the successions, (husband’s and wife’s) were administered by one of the hcirp, who, as heir, sued for a partition, and caused a curator ad hoc to be appointed to represent an absent brother. There was a sale of property, and a rule on purchasers to comply with their bids, and two of them defended, upon the ground, inter alia, “first: that the two successions were in course of administration and in possession of the administrator thereof, who had not tendered a final account, and a sale for partition could not therefore be made.” The court said: “As to the first ground, we can see no good cause of apprehension, on the part of the purchasers. If the defendant in the partition is properly represented, the act of partitioning all the property is an acceptance of the succession”, etc.
See also, Frazier vs. Hill, 5th Ann., 114; Scott vs. Briscoe, 36th Ann., 278; Benedict vs. Bonnot, 29th Ann., 972.
It seems clear from this, that the heirs of II. M. Hyams, Sr., including the administrator, had the right to make a partition of property of which they were unquestionably the owners, unless there was an objection and a demand, from the creditors, for administratiou thereof or for security, and, unless such demand, if made, was sus-*356tamed by the court. It seems- also clear that the heirs, making such partition of succession property, became, personally, debtors, with respect to claims against the succession; but, the creditors of the succession, who were without mortgages- or liens on the property sold to effect such partition, and who failed to demand a separation of patrimony, have no special rights or privileges, with regard to such property, which can affect titles in the hands- of third persons, who have acquired from purchasers at the partition sale.
If the property, which was the subject of the partition sale, is to be-regarded as not having belonged to the succession, but as having come to the heirs, through another channel, the case may be said to be stronger as against the’ plaintiffs. And, from either point of view, the title acquired at the partition sale, was a “just title”, sufficient, when accompanied by possession, to constitute a basis for the prescription acquirendi causa.
Since there is, and can be, no denial, that, whether the title to the property vested in the heirs of IL M. Hyams, Sr., at his death, through his succession, or otherwise, and whether incumbered or free of incumbrance, it was a valid title, it follows that the parties to the partition, basing their respective claims thereon, needed no- better title, as did the defendants in the case of Kernan- vs. Baham, 45th Ann., 799, to which we have been referred. The testimony in the record, upon the subject of possession, being entirely uncontradicted, we think sufficient, as is the title, for the purposes of the prescription set up. These views render it unnecessary that we should again enter into the subject of the title to confiscated property during the life and at the death of the confiseatee.
We find the judgment of the lower court correct, and it is affirmed.
We concur in the decree on the ground of the prescription pleaded.
N. C. BlaNchaRd.
Jos. A. Breaux.
Nici-iolls, C. J., recused.