Bullard, J.,
delivered the opinion of the court.
This cause, in connexion with others strongly analagous, involving a variety of difficult and embarrassing questions of law, on the solution of which, it is understood, depends a vast amount of property, has occupied for several weeks, the anxious and undivided attention of this court. Both parties come forward under circumstances of equity: on the part of the plaintiffs, they appeal to their tender age and legal incapacity, and invoke the protection of the laws as the guardian of their rights. The defendants, on the other hand, exhibit themselves as utter strangers to the original proceedings of which their adversaries complain, as possessors in good faith, by purchases fairly made for a valuable consideration, and long possession. They, in their turn, rely on the presumed sanctity of judicial proceedings, growing out of the alleged insolvency of the plaintiffs’ ancestor, the renunciation by his widow, and the silence and acquiescence of all concerned, for a period of thirteen or fourteen years.
In this conflict of equitable considerations we are bound to examine the legal rights of the parties, according.to the laws in force at the time these transactions took place, without regard to any change of laws or circumstances since that period, guided by the best lights within our reach; and in this investigation we have been -greatly aided by the very able and elaborate arguments of counsel on both sides.
The succession of John Poultney, junior, whose title to the property in controversy is not contested, was opened in 1819, and this suit was instituted by his minor heirs in December, 1832, who afterwards, and pending (he suit, accepted his succession, with the benefit of inventory. The defendant denies the title of the plaintiffs, and sets up title in himself, under a sale from Charles Harrod and Francis B. Ogden. The vendors of the defendant being called in warranty, answer by a general denial.
A leading question argued at the bar, and which first calls for our consideration, relates to the true legal situation of Poultney’s estate as vacant or not, and whether, according to the law then in force, his heirs were vested with the title [410]*410and property immediately on his death; or whether up to the this guit was instituted, or the estate was formally accepted in 1833, they must be regarded only as having the faculty to acquire the property by acceptance, while the succession musi, in the meantime, be considered as vacant, and not represented by an heir at law. It is conceded that the maxim of the customary law of France, that the title and possession of the heir, are but the continued and prolonged title and possession of the ancestor, according to that fiction, which represents the ancestor at the moment of his decease, as investing his heir with all his rights, le mort saisit le vif, was not known in its full extent to the Roman law, nor adopted in Spain. But, it is contended that the succession of children who, at the death of their father, were under the paternal power, and were denominated sui hceredes, formed an exception to the general rule; and that, as relates to them, no acceptance or judicial recognition, or additio hcereditatis was required,to invest them with a perfect title to the property left by the father. That, while other classes of heirs, by the Roman law, were considered as having acquired a right in the property composing the estate, only by acceptance or some act equivalent thereto, these forced or necessary heirs, on the contrary, were regarded as continuing the existence of the pater familias, both in property and possession; and that a succession so represented could not be considered as vacant or hcereclitas jacens.
This necessary heirship, which involved as a consequence the obligation on the part of the heirs to pay even ultra vires hereditarias, all the debts and charges of the estate, does not appear to have been adopted as a part of the law of Spain. That such heirs, without even entering on the estate, were capable of transmitting, at their death, the inheritance to their heirs, is undoubted ; but the right of abstaining from the succession, of repudiating it, and consequently of being exonerated from the actions of creditors before acceptance, or intermeddling, and finally that of accepting with the benefit of inventory, appears to us repugnant to those subtilities of the ancient Roman law. 1 Gomez variæ Resolutiones, verbo Transmis, hcered. No. 25 et seq.
According (0 the Cn»v cw« could be eompei- and assume the quality of heir; ard having accepted, might renounce, and even accept again in some instances. Until such acceptance and renunciation, the inheritance was a fictitious being, representing,! n every respect, the deceased.Before acceptance, the title ,of the heir is not vested. So, where the widow renounced the community and no person claimed as heir for thirteen years, the estate was considered and held to he 'vacant. Civil Code of 1808. art. IIS, p. 17%
The text of the 1st law, title 14 of the 6th Partida, which treats of the entrega does not recognise any distinction between ordinary heirs and those who were denominated mi' hmredes. This entrega or delivery is defined by that law to be the corporal taking possession of the property composing the estate: “apoderamiento corporal que recibe el heredero de los bienes de la herencia;” and it is said to be attended with great advantage, for the heir gains thereby, at once, the mastery or ownership of the estate: “ca, si dé otra guisa fiziessen avria el nome sin la pro.”
Whatever difference of opinion may exist among commentators, as to the true construction and effect of this law of the Partidas, it appears to us that the provisions of the Code of 1808, were too plain and explicit to admit of the distinction here contended for, According to that code, no one could be compelled to accept a succession and to assume the quality of heir: having accepted, he might still renounce; and having renounced, he might, in some cases, still accept again. It may, therefore, be said, that the heir could not .be compelled to renounce within the period limited for his acceptance. Until such acceptance or renunciation, the inheritance is considered as a fictitious being, representing, in every respect, the deceased, who was owner of the estate. The acceptance has, it is true, a retroactive effect, and the heir is considered as having possessed from the opening of the succession ; but it is by acceptance he is considered as seized of the property. Before acceptance, his title is in facúltate, but not vested, at least as to third persons. Civil Code, page 161 el seq. The widow having renounced the community, and no body claiming the estate as heir, or under any other title, it must be considered as a vacant estate, according to the definition given in article 118," page 172, although the heir was present.
Such is the view taken of the provisions of the Code, by this court, twenty years ago, in the case of Cresse vs. Marigny. “The principiéis,” says the court, “that, until acceptance or renunciation, the inheritance is considered as a fictitious being, representing, in every respect, the deceased. [412]*412In the meanliine there is no heir, and we see no reason why the persons who have a right to refuse to be heirs, should be considered as such, before they malee known their intentions.” 4 Martin, 57.
Tlie rules and formsprescribed for the alienation of minors’ property, as such, viz : that it can only be sold in pursuance' of the advice of a family meeting, and for its appraised value, do not apply to property alienated by judicial authority, at the instance of creditors and for the payment of debts which formed a charge on the estate 5 because the sale of property in which minors were interested, for the payment of debts, has always formed an exception to the rule.
If the mother and natural tutrix of the minor heirs of Poultney, had, with the advice of a family meeting, accepted the succession for them, soon after the death of their father, they would have been regarded, in relation to creditors, rather as“ administrators than as the true heirs and proprietors of the estate; they might have been required to give security for the administration: they would have been entitled, in their own right, as heirs only to the residuum after the payment of the debts and charges of the succession.' Civil Code, page 168, article 104, et seq.
When, as in the case now before us, the acceptance takes place many years after the opening of the succession, after the property has been alienated by judicial authority, at the instance of creditors, and for the payment of debts 'which formed a charge on the estate, and upon the heirs, the retroactive operation of such an acceptance ought not to be considered as conferring on the heir such absolute property, in the effects composing the succession, as to enable him to maintain a petitory action, without any regard to the intermediate alienations. That such acceptance might suffice as evidence of title against a naked possessor, may be true; but, when the title set up by the possessor, rests on an alienation provoked by creditors, before acceptance, it cannot be regarded as a mere nullity: and the great difficulty and embarrassment in this case, have arisen in settling the principles of law, according to which the validity of the defendants’ title ought to be tested.
Upon this subject, we think the following propositions may be laid down as fair and logical deductions from the principles of the Code just announced :
1. That the rules which apply to the alienation of minors’ property, as such, to wit: that it should be sold in pursuance of the advice of a family meeting, and not for less than its appraised value, have no application to (his case; because, [413]*413the sale of property in which minors arc interested, for the payment of debts, has always formed an exception to the rule; and, because the minor heirs, at best, have but a residuary interest in the estate, which could be ascertained only by a full administration.
• Minor heirs, without acceptance, must be considered as strangers to the succession, which is in itself vacant, and not represented by an heir $ consequently, the heirs are not entitled to citations and notices in the proceedings by the creditors to sell and distribute the property in payment of the debts.
2. That all those grounds of nullity in the proceedings, which assume and are founded upon the hypothesis, that the minor heirs were always, from the opening of the succession, and before acceptance, his representatives in relation to creditors, and as such, entitled to citations and notices, must be laid out of view as inapplicable. These minor heirs, without acceptance, must be considered (saving the right to accept at a future time) as strangers to the succession, and the succession itself as vacant, and not represented by an heir.
These principles may be said to be of a negative character, and to warn us what ought not to be our guide, rather than as furnishing the true legal test and standard, by which we are bound to estimate the pretensions of the parties to this controversy. Both parties have appealed to article 95, page 164, of the Code, and much reliance has been placed on the principles which it consecrates. It declares, that “so-long as prescription of the right of accepting is not acquired against the heirs, who have renounced, they have the faculty still to accept the inheritance, if it has not been accepted by other heirs, save, however, the rights which may have been acquired by third persons, upon the property of the succession, either by prescription, or by lawful acts done with the administrator or curator of the vacant estate.”
This article applies by its terms, to a case somewhat different from the one now before the.court. It supposes a renunciation by the heir, and a subsequent acceptance by the same heir. Now, a renunciation .is n'ot presumed, and in a legal sense of the word, the plaintiffs cannot be said to have renounced the estate of their father. Their tutrix might, with the advice of a family meeting, have accepted, but then it could only have been with the benefit of inventory. The estate was rather left vacant than renounced, their tutrix having neglected to take any steps to preserve the [414]*414rights of her children. Let us suppose she had accepted, an(j gn(jjng ^ afterwards for the advantage of her children to abandon the estate, what steps would she have been compelled to take by the law then in force1? The 7th jaw oJf title 19, of the 6 th Partida, provides for such a case. It declares, that “when a minor has been admitted as heir, if he considers it disadvantageous to retain the estate, he may pray the judge to authorise him to abandon it, although he may have entered upon it. But when this is to be done, it should be contradictorily with the creditors, that they may know for what cause he abandons; and the judge, if he considers it disadvantageous to the minors to retain the estate, may authorise him to abandon, and replace him in his former condition, first placing all the effects which belong to the estate in custody, (recábelo.)” We here see, that while the law is indulgent to minors, it is provident of the rights of creditors, and that they are entitled to notice, whenever the heir who has accepted, wishes to renounce, anc[ that the property composing the estate, must be delivered . , , r , i i , , i into the custody of the law, and that m substance such an abandonment is a surrender of the estate, to be administered for the £>enefit of the creditors. Perhaps the heir who had , , , . .. . never accepted, ought not to be placed in a worse condition, than one who having once accepted, renounces the estate, .an(j comes jn afterwards to accept a second time, which 1 is the case provided for by the 95th article now under consideration; and we can see no good reason for considering condition more favorable, nor can we perceive, why an alienation made fairly by competent judicial authority, and for the payment of debts due by the deceased, and more especially debts secured by mortgage on the property alienated, should not conclude the heirs who accept afterwards, with the benefit of inventory.
After the tíme for deliberation has elapsed, an fahdybycompetent judicial authority, and for the payment of deceased^ more especially mortgaged debts on the property conclude the aftenvauls^ivith the benefit of in-
seltled principle o^^th;it effect of an acSft'but°a not he so extend* ed as to operate of the right^of third persons, previously fjuired,
^ave high authority for assuming as a principle, that the retroactive effect of an acceptance, which is in truth but a fiction, should not be so extended, as to operate to the prejudice of. the rights of third persons, previously acquired, ° r ’ r j i 1 Salgado, part 1, chapter 32, Nos. 40, 41, 42.
[415]*415If the plaintiffs, on their acceptance of the estate, instead 1 1 t . of a petitory action, had instituted their action for restitution in integrum, their success would have depended on the proof of two facts : minority and lesion. In considering whether they had suffered lesion, regard must have been had exclusively to the state and condition of things, at the time the transactions complained of took place,' without any reference to subsequent changes, wholly independent of the will, or acts of either party. It is, to say the least of it, extremely questionable whether the plaintiffs, by adopting a different form of action, can change the measure of their own rights, or those of their adversary.
With these general principles in view, we proceed to examine the condition of the succession of Poultney, at the time of his death, in relation to creditors, and the rights of creditors in relation to the property, and to the heirs at law.
We cannot doubt, from the evidence in the record, that John Poultney died insolvent, not only in a legal sense, but in the common acceptation of the word. A few months before his death, he had applied to the District Court., to call his creditors together, alleging his inability to meet his engagements, and had obtained a respite for one, two and three years, which was homologated by the court. He died before the first payment fell due, according to the terms of the respite. The respite was asked for and granted, on the express ground of his inability to pay his debts, and the suit brought by him against his creditors a species of concursó, for the purpose of obtaining a forced respite, constituted him a falido or insolvent, according to the doctrine of the Curia Philippica, verbo falidos, Nos. 1, 3.
After the respite was granted and sanctioned by the court, the debtor might have been compelled to pay at the terms fixed by the respite, and was no longer at liberty to make a voluntary surrender .or cessio bonorum, and was without any other remedy : he might be compelled to give security, if it was proved that he concealed or dissipated his property, in fraud of his creditors. Villadiego 53, No. 166, 167.
Whether the same court, which homologated the agreement of a majority of the creditors, and had ordered a stay [416]*416of proceedings, was competent to enforce the agreement, by compelling the debtor to pay, without the necessity of instituting a new suit, we do not think it necessary to decide; but it appears clear to us, that neither the debtor nor his representatives could afterwards contest the validity or amount of the debts set forth and admitted in his petition ; and that as to both, the judgment of the court homologating the agreement, would have the force of the thing adjudged.
But the debtor in this case died before the first payment fell due, according to the terms of the respite; and the question'has been much discussed, whether the legal representatives of Poultney could avail themselves of the delay granted by the creditors and sanctioned by judicial authority or whether the privilege was merely personal, and ceased on the death of the debtor. Febrero seems to distinguish between heirs pure and simple, and those who accept with the benefit of inventory. His words are, “no aprovéchala moratoria á los <■ herederos del deudor que estando pendiente falleció, si aceptan su herencia con beneficio de inventario, aunque el juez la haya aprobado; y la razón es, porque como por esta aceptación es visto no querer obligarse ultra vires hereditarias no hay materia sobre que recayga, y asi pueden los acreedores proceder contra la herencia sin aguardar á que espire el término concedido
It is contended by the counsel for the appellants, that the moratoria here spoken of, is the respite granted by the sovereign or his council, and not that which is more properly called the espera, founded on the consent of creditors in a concurso. To this objection it may be answered: first, that the two words moratoria and espera are used both in the texts of the Spanish law, and by the best commentators, as synonymous; differing only in their etymology and employed indiscriminately by Febrero himself. Second, that he speaks of the respite as not availing the beneficiary heir, although it had been approved by the judge, and therefore not intending to confine the principle to that kind of respite which flows from the royal prerogative, and which required no judicial sanction, but was, in fact, a mandate addressed [417]*417to the tribunals, commanding them not to molest the debtor for a specified period; and again, that the same author had previously said that the moratoria granted by the prince, is a mere personal privilege, and did not extend either to the sureties or successors of the debtor: but the reason given by the author renders it clear to our minds that he meant such a respite as the one granted to Poultney, by his creditors. The reason assigned is, in substance, that the heir who accepts with the benefit of inventory, does not accede to the obligation of his ancestor to pay the debts, but he engages to pay so far as the means of the estate may extend. The condition upon which the respite was granted, to wit: that the debts should be paid at the stipulated periods, under pain of compulsory process, no longer exists, as between the ' creditors and the beneficiary heirs; and, therefore, the contract, if it be so considered, is no longer binding: but the authority of Salgado is explicit on this point. 1 Salgado, part. 2, cap. 30, No. 71.
Where a respite has been ~ granted to a debtor by his creditors, and he ' dies before the first instalment becomes due, according to the terms of the respite, his estate will be considered insolvent; and the debts all due and demandable, notwithstanding the respite, if the estate is-accepted with the benefit of inventory..
We are, therefore, of opinion that the estate was insolvent; the debts all due and demandable, notwithstanding the respite; and that the succession was not represented by an heir; and the question now arises, what remedy was left to the creditors; what proceedings did the law authorise them to take, and before what tribunal could they proceed 1
The widow, shortly after the death of Poultney, caused the seals-to be affixed on the effects of the estate, proceeded under the authority of the Court of Probates to have an inventory taken; and, finally, on the 25th of January, 1820, by a formal declaration before a notary public, renounced the community of acquests and gains. In this state of things, on the 10th of February, 1820, some of the creditors, who were parties to the respite, applied by petition to the same court, that of the First Judicial District, representing the insolvency of the succession, the renunciation of the widow, and that the estate was unrepresented, and prayed a meeting of the creditors for the purpose of taking into consideration the affairs of the succession, and of naming syndics to administer the same for the benefit of all concerned. A [418]*418meeting of the creditors was thereon ordered. The creditors met and appointed syndics, whose appointment was confirmed by the court, and they were authorised to take possession of the estate, and to sell the property. The petition presented by the syndics for that purpose, represents that they had been appointed, and that more than ten days had elapsed since the filing of the proceedings, and no opposition had been made. This order of the court bears date April 4,1820.
On the 23d of March preceding, the same syndics presented their petition to the judge of the Court of Probates, in which they set forth that the widow Poultney having renounced the community, a meeting of the creditors of the deceased had been had, under the authority of the District Court, and that they had been appointed syndics; they therefore pray that the seals of the Probate Court may be taken from the papers, effects, &c., of the deceased, and the same delivered to them to be administered according to law; wherefore the court gave the following order: “Let A. Peychaud, Esq., justice of the Peace, be authorised to take off the seals affixed upon the papers and effects left by said deceased, as prayed for.”
Did the syndics thus appointed legally represent the vacant succession of John Poultney; and if so, were the proceedings had contradictorily with them, which terminated in the alienation of the property in controversy, binding on the heirs, who subsequently accepted his succession, according to a just construction of that article of the Code, above commented on, which recognises the validity of acts done with the administrator or curator of the vacant estate 1
The counsel for the appellants in their 4th point, contend that no forced surrender could be had of the estate of a deceased person, on the suggestion of its insolvency. It could only be administered by the Court of Probates. The first case relied on, that of Dupuy vs. Griffin, differs essentially from this. In that case the estate had been in a train of administration, by a testamentary executor acting under the authority of the Court of Probates, and this court decided, that the creditors could not compel the surrender of it to be [419]*419administered by syndics. In the case of Jenkins vs. Tyler, the only question was, whether an order of seizure issued against mortgaged property, could be prosecuted after the death of the defendant, who died after the seizure. But the question now presented is, not whether by the law existing at that time, the representatives of an insolvent estate could be compelled to surrender it into other hands, to be administered for the benefit of creditors, but whether syndics or other representatives could be validly appointed to represent the succession of Poultney, not otherwise represented, at the instance of creditors, with a view to the administration of the property, for the benefit of all concerned in concurso, and if so, whether such appointment by the creditors, sanctioned by the District Court, constituted them legal administrators of the succession.
According to the Spanish law, an estate not represented by an heir, might be provided with an administrator or curator* at - the instance of creditors, with a view to administer it in concur-so, for the benefit of all concerned.
That an estate not represented by an heir, might by the Spanish law, be provided with an administrator or curator, at the instance of creditors, with a view of administering it in concurso, appears to us well established by authority. Salgado on this point, says: “ Hmditati, cere alieno gravatce nondum aditce sed jacenti, instantihus cretitoribus pro solutione, dandum esse curatorem cum quo judicium concursus agi possit legitime inter hocreditatem et creditores, abunde diximus,” part l, chapter 32-1.
The same author considers it quite immaterial, whether the person so appointed, be denominated curator, administrator or syndic, and he recognises the right of creditors, to indicate the proper person to be appointed.
This species of concurso or ocurencia de 'acreedores, is treated of by Febrero, in the passage cited by the counsel for the defendant, as a proceeding which often takes place without the concurrence of the debtor himself, as when his creditors on the death of the debtor, present their claims in the tribunal, charged with his testamentaria, or when they unite in proceeding against the property of the debtor, on his flight or failure. Among the points of difference between this and other kinds of concurso, that author gives the following : “que en este no hay memoriales'de bienes, ni acreedores, ni éi instancia [420]*420del deudor se convocan, ni citan, ni se Jijan edictos, ni tampoco se nonibra regularmente defensor y on el otro, si; bien que cuando se forma por muerte, fuga ó quiebra y se ignora que acreedores tiene, se debe nombrar de oficio, y llamarlos por edicto, y así se practica on esta corte.”
It is only ncou? and cite the ocedi’ng1 to Vadminister an estate in concurso, to ascertain if orTenóunce°the succession: and where the tutrix was present and renounced the community, and declined either accepting or renouncing for the whose ' rights were fully exercised by her, it was held, that no notice to them was necessary.
These authorities appear to us to sanction a proceeding on the part of the creditors in rem, against the estate of a debtor not otherwise represented, for the purpose of procuring the payment of their claims in the nature of a concurso necesario, and the appointment of a defensor by the tribunal in which icis instituted. But, it is contended that even admitting the right to institute such proceedings, yet in this case they are void, first, because no citation or notice was previously given to the heirs ; and, secondly, because the District Court had no jurisdiction, but the Probate Court alone could have taken cognizance of such a case.
y jn support of the first ground of nullity, the appellants rely on the authority of Salgado, part 1, chapter 32, number 23, et seq. He says, an heir ought to be first sought after-]l(Bres nerquerendus erit; and he adds, that if it is certain J 3 one has been instituted by testament, he must be specially cited by name. The widow, who was present in the place, an(j who alone could have exercised the actions of her minor children, and by an acceptance put an end to the adminis- . , , . * j r ,T tration by syndics or curators, was well informed of these proceedings. She joined in executing certain powers of r 0 J or attorney with the syndics, relating to the interests of the estate. The only purpose for which it was required to seek out an jjgj,. was to ascertain whether such an heir would 3 accept or renounce the succession. The widow had taken time to deliberate, had procured an inventory to be made, an[] finany renounced for herself before these proceedings begun on the part of the creditors.
The rights of minors, situated as these were, are fully exercised by their tutors. Civil Code 172, article 120. It cannot be pretended that the children personally were entitled to notice; and in our opinion, the only legitimate consequence which would follow from a neglect to call on [421]*421. the tutrix in a more formal manner, to accept or renounce, when she herself acquiesced, with a full knowledge of the proceedings, and neglected to interfere, would be to authorise a restitution in integrum, on the part of the minors, so-far as they could show themselves injured by the proceedings.
Under the Ci-of.1808, Court hadjurisvmta-L, of pro-if^cantaf4atf administered for creditors, and po'h/t Iefdmnustrators, curators or syndics to administer and disperty°of sifchesl of^uin6 terested therein.
II. The second ground of nullity urged, to wit: the want of power in the District Court to make such an-appointment, and to entertain jurisdiction in relation to the administration of süch a succession, has been pressed upon us with great _ force of -argument, and the question is not free from difficulties. It is said that, even admitting the jurisdiction of the District Court, ratione materice of a suit for debt against an estate or its legal representative, yet the power to appoint-such representative, under the denomination of administrator or curator, always pertained exclusively to the Court of Probates.
Although the estate of Poultney is considered as having been vacant, because its possession was not claimed by an heir or under any other title according to the definition given by the Code of 1808, yet it does not appearvery clear that it was of that class of vacant estates, to which the Court of Probates had the exclusive authority. to> appoint a curator. Article 120, page 172, declares, that “such administration shall not take place if all the heirs are present or represented in the territory, though all or some of' the heirs should be minors; the rights of such minors being fully exercised by their tutors or curators.” The creditors, at the same time, have rights to exercise ; in this particular case, a mortgage withthe privilege of vendor, jus in re. They had a right to pur sue the' property wherever it might be found, into whose soever hands it might come. This was a case not expressly provided for by the Code, and the creditors applied to the District Court for redress, a court of general jurisdiction and with ample powers to afford relief. Utfder its authority, 1 L . ' syndics were appointed as defensors, against whom the creditors proceeded to exercise their hypothecary actions. The authority to make such appointments as are incident to its jurisdiction of the cause, is recognised by Spanish commen[422]*422tators. That the District Court was. not without jurisdiction ratione materia, of a suit against an estate, and that judgments rendered in such cases are not radically null, is fully settled in the case of Tabor vs. Johnson. The undisputed exercise of such jurisdiction for a long series of years, the general acquiescence of the legal profession, the universal understanding among the people, as well as the courts and the bar, form together such contemporaneous interpretation of the laws relating to conflicting jurisdictions, that however doubtful it may appear on a close analysis, it cannot now be disturbed without the greatest injustice, and inflicting incalculable mischiefs on the country.
In a petitory action, persons (as heirs) claiming the estate, are bound to make good their title against the legal possessor; and in opposition, the latter has a right to set up and prove by every legal means, any title which may defeat the claim of the plaintiffs.
We come now, to inquire into the proceedings had by Harrod & Ogden, against the syndics, in pursuance of which, the land in controversy in this case, was sold to satisfy a mortgage, with the privilege of vendor, and which was due to them under a subrogation' from Madame Rousseau. If that alienation was valid, it is not necessary to inquire into the proceedings subsequently prosecuted in the Probate Court; because this being a petitory action, the plaintiffs cannot recover without showing title in themselves, and if the estate had been previously divested of title, the heirs are precluded by such alienation. It seems to be supposed, that the court has established a contrary doctrine in the case of Bedford vs. Urquhart et al., recently decided, but on examination of the opinion of the court in that case, it will be found, that such a question did not arise, but that on the contrary, the court adhered to the principle laid down in the case of White vs. Holstein : “that the persons claiming the estate, are bound to make good their title against the legal possessor, and in opposition, the latter has a right to set up and prove by legal means, any title which may defeat the claim of the plaintiffs.” In the case now before us, the defendant exhibits title under a conveyance from C. Harrod and F. B. Ogden, and in support of his right to be maintained in possession, is authorised to show, that the estate of Poultney was divested of title by the proceedings in the .District Court. To this it is objected, that the repre[423]*423sentatives of G. M. Ogden, the first purchaser, repudiated that title, and proceeded to divest the heirs by a new suit, thereby admitting the title of the heirs existing, at the time proceedings were commenced in the Probate Court. But we are of opinion, that those proceedings were instituted to strengthen the original title, acquired under the first alienation, and that the declaration of the representatives of Harrod & Ogden, that those proceedings were null, cannot avail the plaintiffs, who were not parties, and that the principal object was to cancel certain mortgages retained by the sheriff, and that the sheriff was not a competent party for any other purpose. The allegation in that petition, that the first purchase by G. M. Ogden, was a nullity, is not such a judicial avowal as will avail the present plaintiffs; and if they rely on it as an avowal, they must take it all together ; as well that part which asserts a title subsequently derived under the judgment against the widow and heirs in the Probate Court, as that which suggests the nullity of the first sale. 10 Toullier, 393, et seq.
_ chaser cannot ra^y^huh^has . ^ncHhe™" vermentinapethat the proceed! lnSf were null title was first acavaUuhiriTperthec-
T|ie sheriff’s upon the execument,andfoÍnifh evialienation; and musthshow°&at the forms of law were not complied with.
Mortgageesare from bidding for jjjj? mortgaged premises when sold under execution.
The evidence offered by the defendants, to show that the estate was divested of title, consists of the sheriff’s deed to G. M. Ogden, the order of seizure and sale, in virtue of which the sale was made, the sheriff’s return, and a copy of the judgment ordering the seizure, and all the proceedings had contradictorily with the syndics. The sale took place on the 13th of June, 1820, and the writ or order of seizure is dated May 9th. The sheriff’s return shows, that he made demand of one of the syndics, and that more than thirty days elapsed before the sale. This court has constantly recognised the principle, that the sheriff’s deed and return upon the execution and judgment, furnish prima facie evidence of a valid alienation, and that he who attacks such . alienation, must show that the forms of law were not complied with. 6 Louisiana Reports, 627., The presumption is, omnia rite recteque gesta.
But it is contended, that Ogden, being one of the mortgagees, was incapable by law, of purchasing the pro- , f A mt * \ , 7, .• 1 , perty mortgaged. l he text of the Partida referred to, [424]*424confines the prohibition to the pledgee, without the consent owner 0f (]le thing pledged. But under the laws regulating sales under execution to the highest bidder, mortgagees are not declared incapable of buying, and the universal practice, we believe, has been the other way.
Syndics may tcrms^of ° sale of mortgaged property, that it be sold on a out ’ appraise-c^nsent^binciing on the heirs claim'the theyyshowU"they were injured by lt-
Where sales of property^unare regular, the sefstS °mi”Clbe though theJudg" ment is afterfoi^vant^of^jui risdicUon in the court by which it was rendered,
It is further objected, that.the sale was not advertised according to law. The order of seizure issued on the 9th May, and the sale was made on the 13th June. There was, therefore, time for the advertisement, required by law. It is true, that pending the seizure, the court by consent of parties, gxe(j tjle terms of sale: but it does not appear that the ’ 11 . regular advertisement was dispensed with. The parties consented to dispense with an appraisement, and this also *s complained of; but they also consented to a sale on credit, and, in our opinion, the agreement was advantageous to the as the whole debt was due. .The syndics were authorised to give such a consent, and it is, in our opinion, binding on the plaintiffs, unless they show they were injured by it.
The several points made by the counsel for the appellants, which relate to the alleged irregularity and nullity of the proceedings that preceded the sale, particularly the 6th ^th, 8th and 9th, go to affect the validity of the judgment and order of the District Court, by virtue of which the sale took place. If the sale itself was regular, we are of opinion, that even the reversal of the judgment would not destroy its e^ec,J' This court has repeatedly recognised that doctrine, in relation to sales under execution, and maintained the rights of purchasers under sheriff’s sales, although the judgment had been reversed for want of jurisdiction in J ° J the court, by which it was rendered. 5 Martin, N. S. 214.
In relation to the 22d. point made by the counsel for the appellants, that the rights of the minors cannot be prejudiced by the neglect or omissions of their tutrix, and that any deviation from the forms prescribed by law, for the alienation of their property is fatal, and the sale a nullity, the court has already expressed its opinion, that the rules which apply to the sale of minors’ property as such, when the title is fully [425]*425vested in them, are not strictly applicable to a case like the present, where the rights of the minors were contingent and residuary, subject to the undoubted claims of creditors, deduclo cere alieno, and who, in this very case, appear only as beneficiary heirs, claiming property already alienated for the payment of debts, which, if their tutrix had accepted in 1820, would have been due by them, and the property now sued for, would have been a pledge in their hands, for their payment. The proposition, therefore, that the rights of minors cannot be prejudiced by the negligence and omissions of their tutors, must be received with great limitations. So far as minors are prejudiced by the negligence or omissions of their tutors, they are entitled to restitution; but it does not follow, that the acquired rights of third persons, resting on the faith of judicial proceedings, are to be sacrificed, not for the purpose of replacing the plaintiffs in the position they would have occupied, if their tutrix had assumed the administration of an estate, so overwhelmed with debt that she renounced her own eventual interest in it as widow, but to give them possession of the property, when it is manifestly impossible, at the same time, to restore the creditors, whoso rights are not less sacred to their original condition in relation to the estate. Coming forward with such pretensions, it is evident they seek something more than restitution: certant de lucro captando. But a review of the cases cited by their counsel in support of this principle, will show that this court has never pushed the doctrine to that extreme. In Chesnaux’s heirs vs. Sadler, the question was, whether the alienation of immoveables belonging to a minor, made by the tutor, without any judicial authorisation, was binding on the pupil, and the decision was against the sale; but even in that case, the court seems to recognise the principle, that if the alienation were prima facie good, the minor would be driven to his action of restitution in integrum. In Gayoso vs. Garcia, it was decided that an executor who was authorised to sell, without the intervention of justice, was not dispensed from the obligation imposed by law, of selling at public [426]*426auction, and that a private sale was void, as to the testamentary heirs, who were minors. The case of Elliott vs, Labarre, presents the single question, whether the sale of the property of a succession belonging toabsent heirs, by the register of wills, without an order of the judge of probates, was binding on the heirs, and it was decided in the negative. In Donaldson vs. Dorsey’s syndics, nothing more was decided than that a sale made under a judgment, to which neither the plaintiffs nor their mother were parties, did not divest them of the title. The principle settled in the case of Fletcher vs. Cavelier, is too self-evident to require comment, to wit: that the sale of minors’ property by private contract, is void.
We have thus far considered the .principles of law and equity involved in this case, without regard to the verdict of the jury to whom it was submitted in the court below, and whose finding was in favor of the defendants. It only remains to notice the bill of exceptions taken by the defendants to the charge of the judge.
After a deliberate examination of that charge, we find that on the leading principles of the case, it does not vary materially from the views which we have expressed. In some particulars, perhaps, the judge may not have laid down the-law with sufficient limitations, and in the hurry and confusion of a jury trial, a great degree of precision is not tó be expected, particularly in a case so novel in its character, and so complex in its details. In the main, the cause was fairly laid before the jury, and the facts left entirely to them, with instructions on the points of law of which the plaintiffs have no just cause to complain. Although the opinion of this court might differ essentially from that of the court below, on some of the various questions of law involved ; yet, as the verdict has, in our opinion, done justice between the parties, we do not feel authorised to disturb it.
In conclusion, we cannot forbear to add, that it appears to us, the proceedings which led to the alienation of the properly in controversy, growing out of the extreme disorder of [427]*427Poultney’s affairs, were carried on in good faith, conducted on all sides by the most distinguished and experienced jurists of that dav, before a court whose iurisdiction was not then questioned, acquiesced in by the' tutrix of the plaintiffs, who had a right to exercise all their actions, and who considered it most prudent not to hazard her own, in the wreck of her husband’s fortune. The property was sold to reimburse his endorsers the sums paid by them for the purchase of the property itself. The success of the plaintiffs in this case, would involve the same parties or their heirs in aggravated ruin, as warrantors of the property to the present possessors. If we consider the situation of things at that time, we are far from being satisfied that the condition of the minors would have been bettered by accepting the succession of their father. Fifteen years have, indeed, produced great changes; a plantation has risen into a city ; but time, while it enhances the value of property,'does not affect the immutable principles of justice.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs,