Eustis, J.,
delivered the opinion of the court.
The plaintiffs claim two-thirds of a tract of land situated on the left bank of the Mississippi, about nine miles below the town of Baton Rouge, having from twelve to thirteen arpents front, which they allege belonged to their grandfather, and at a partition of his estate, was set over to their father; that at his death it descended to them and their sister, who is not a party to this suit; that the defendant, Huntstock, has illegally taken possession of it. They pray judgment, that they be declared to be the lawful owners of two-thirds of the land, and be put in possession thereof, and for damages, and also for the rents and profits, during the time of the adverse possession of the defendant.
The defendant, Huntstock, disclaimed, and alleged that he was in possession as the tenant of the defendant, Bernard, who became a party to the suit, and set up tille.
He alleged that he was the owner of the land in dispute, having purchased it at a public sale made by the syndic of the creditors of the late Marie Rivas, the mother of the plaintiffs, for the sum of nine thousand dollars ; that the sale was in all respects regular, and that he paid the purchase money to the syndic; that at the death of the plaintiffs’ father, he left his succession encumbered with a large number of debts, and that the property in question, which was property of the community, was lawfully adjudicated to the mother of the plaintiffs, who became embarrassed in her affairs, and finally made a cession of property to her creditors; that this tract of land was sold with the other property ceded; that all the proceedings of the adjudication, cession, and the syndicate have been in conformity with the laws; that the property ceded was sold principally for the purpose of paying the debts for which the community was liable; that the plaintiffs afterwards became parties to the tableau of distribution filed by the syndic, and opposed the same, and that they received their shares of the proceeds of the sale; that they, as heirs, took possession, and disposed of the effects left at the decease of their late mother, and thereby became bound, as warrantors, to defend and make good the defendant’s title.
By the article 339, of the Louisiana Code, the adjudication of property held in common between the surviving parent and their minor children, is alone authorized. The separate property of the deceased parent descends to his children, and can only be alienated in the manner prescribed by law, for the sale of minors’ property.
There was judgment in the court below for the defendant, and the plaintiffs have appealed.
We do not consider that the acts done by the plaintiffs, in relation to the effects of the succession of their mother, bind them absolutely as her heirs.
The property in litigation between the parties belonged to the grand-father of the plaintiffs. By an act passed between the heirs of the deceased grand-father, Francis took the land for the sum of four thousand dollars. It is true the terms “sell, bargain and transfer” are used, but we do not consider that they change the nature of the title by which the land was acquired. On the settlement of the estate, which after-wards took place, the purchase money is brought into the general account, and the share of each heir was fixed at the sum of eleven thousand five hundred and seventy-nine dollars and forty-one and three-eighths cents.
We think that the father of the plaintiffs, in point of fact, acquired this property from the succession of his father, as part of the effects thereof, and that it was his separate property, and formed no part of the community which existed between him and his wife, the mother of the plaintiffs.
In 1829, the father of the plaintiffs died, leaving the plaintiffs and their sister minors, and by a decree of the Court of Probates, the property left by the deceased husband, and held in common between the surviving wife and her minor children, was adjudicated to her at the appraised value of the inventory. In the decree of the court, the property which was adjudicated to the wife, as community property, was described to be that contained in the inventory, among which this tract of land was included.
By the article 338, of the Louisiana Code, the adjudication of property held in common between the surviving parent and their minor children, alone is authorized. The separate property of the minor can only be alienated in the forms prescribed by law. We conclude, therefore, that the interest of the minors in this land did not pass by the adjudication of the common property, supposing it to be in every respect legal as to the property affected by it.
[174]*174If the land did not pass to the mother of the plaintiffs by the adjudication, it is clear that she had no right to cede it to her creditors, and they had no right to dispose of it. The sale by the syndic could, therefore, convey no title to the defendant, unless the plaintiffs have done some act which amounts to a ratification or a voluntary execution of the sale.
The plaintiffs, with their sister, were placed on the tableau of distribution filed by the syndic, for the sum of four thousand seven hundred and sixteen dollars and sixty-three cents ; but by an opposition, they alleged their claims on the estate to be the sum of eleven thousand five hundred and seventy-nine dollars and forty-one cents, the amount which their father had from the succession of their grand-falher, which, however, it must be observed they urged hypothetically ; they allege that all the proceedings of the cession are null and void, and pray that the tableau Of distribution be set aside as well as all proceedings had in the case ; but should the court maintain the proceedings, and hold them to have been lawfully conducted, they then in that event pray that they be placed on the tableau according to their rank as privileged creditors for the amount last mentioned. This opposition was dismissed, and we can see nothing in it which looks like a confirmation of the sale made by the syn-dic ; on the contrary, it denies and contests the validity of the whole proceedings in the strongest terms.
Our attention has been directed to some facts which it is contended amount to a ratification of the syndic’s sale on the part of the plaintiffs. The sale took place on the 26th of September, 1831. The tableau of distribution was not filed until the 14th of January, 1835. The opposition of the plaintiffs was filed on the 21st of Januaiy, and the decree homologating the tableau was dated on the 3d of July, 1835. The plaintiffs were not placed on the schedule presented by their mother, but were on .the tableau of distribution, as before stated. Beside the tract of land sold to the defendant, there were two other tracts of land, a house and lot, and several slaves, ceded by their mother to her creditors, and sold by the syndic on the 26th of September, 1831. It [175]*175appears, that on the 27th day of June, 1835, Mr. Buhler, the sheriff of the parish of East Baton Rouge, who -was the syn-die, paid on the order of Francis Rivas, one of the plaintiffs, the sum of two hundred and sixty-nine dollars and eighty-four cents ; this payment was made to a judgment creditor of Rivas. But at this time the opposition of the plaintiffs contesting the validity of the proceedings was pending. The payment of this money,
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Eustis, J.,
delivered the opinion of the court.
The plaintiffs claim two-thirds of a tract of land situated on the left bank of the Mississippi, about nine miles below the town of Baton Rouge, having from twelve to thirteen arpents front, which they allege belonged to their grandfather, and at a partition of his estate, was set over to their father; that at his death it descended to them and their sister, who is not a party to this suit; that the defendant, Huntstock, has illegally taken possession of it. They pray judgment, that they be declared to be the lawful owners of two-thirds of the land, and be put in possession thereof, and for damages, and also for the rents and profits, during the time of the adverse possession of the defendant.
The defendant, Huntstock, disclaimed, and alleged that he was in possession as the tenant of the defendant, Bernard, who became a party to the suit, and set up tille.
He alleged that he was the owner of the land in dispute, having purchased it at a public sale made by the syndic of the creditors of the late Marie Rivas, the mother of the plaintiffs, for the sum of nine thousand dollars ; that the sale was in all respects regular, and that he paid the purchase money to the syndic; that at the death of the plaintiffs’ father, he left his succession encumbered with a large number of debts, and that the property in question, which was property of the community, was lawfully adjudicated to the mother of the plaintiffs, who became embarrassed in her affairs, and finally made a cession of property to her creditors; that this tract of land was sold with the other property ceded; that all the proceedings of the adjudication, cession, and the syndicate have been in conformity with the laws; that the property ceded was sold principally for the purpose of paying the debts for which the community was liable; that the plaintiffs afterwards became parties to the tableau of distribution filed by the syndic, and opposed the same, and that they received their shares of the proceeds of the sale; that they, as heirs, took possession, and disposed of the effects left at the decease of their late mother, and thereby became bound, as warrantors, to defend and make good the defendant’s title.
By the article 339, of the Louisiana Code, the adjudication of property held in common between the surviving parent and their minor children, is alone authorized. The separate property of the deceased parent descends to his children, and can only be alienated in the manner prescribed by law, for the sale of minors’ property.
There was judgment in the court below for the defendant, and the plaintiffs have appealed.
We do not consider that the acts done by the plaintiffs, in relation to the effects of the succession of their mother, bind them absolutely as her heirs.
The property in litigation between the parties belonged to the grand-father of the plaintiffs. By an act passed between the heirs of the deceased grand-father, Francis took the land for the sum of four thousand dollars. It is true the terms “sell, bargain and transfer” are used, but we do not consider that they change the nature of the title by which the land was acquired. On the settlement of the estate, which after-wards took place, the purchase money is brought into the general account, and the share of each heir was fixed at the sum of eleven thousand five hundred and seventy-nine dollars and forty-one and three-eighths cents.
We think that the father of the plaintiffs, in point of fact, acquired this property from the succession of his father, as part of the effects thereof, and that it was his separate property, and formed no part of the community which existed between him and his wife, the mother of the plaintiffs.
In 1829, the father of the plaintiffs died, leaving the plaintiffs and their sister minors, and by a decree of the Court of Probates, the property left by the deceased husband, and held in common between the surviving wife and her minor children, was adjudicated to her at the appraised value of the inventory. In the decree of the court, the property which was adjudicated to the wife, as community property, was described to be that contained in the inventory, among which this tract of land was included.
By the article 338, of the Louisiana Code, the adjudication of property held in common between the surviving parent and their minor children, alone is authorized. The separate property of the minor can only be alienated in the forms prescribed by law. We conclude, therefore, that the interest of the minors in this land did not pass by the adjudication of the common property, supposing it to be in every respect legal as to the property affected by it.
[174]*174If the land did not pass to the mother of the plaintiffs by the adjudication, it is clear that she had no right to cede it to her creditors, and they had no right to dispose of it. The sale by the syndic could, therefore, convey no title to the defendant, unless the plaintiffs have done some act which amounts to a ratification or a voluntary execution of the sale.
The plaintiffs, with their sister, were placed on the tableau of distribution filed by the syndic, for the sum of four thousand seven hundred and sixteen dollars and sixty-three cents ; but by an opposition, they alleged their claims on the estate to be the sum of eleven thousand five hundred and seventy-nine dollars and forty-one cents, the amount which their father had from the succession of their grand-falher, which, however, it must be observed they urged hypothetically ; they allege that all the proceedings of the cession are null and void, and pray that the tableau Of distribution be set aside as well as all proceedings had in the case ; but should the court maintain the proceedings, and hold them to have been lawfully conducted, they then in that event pray that they be placed on the tableau according to their rank as privileged creditors for the amount last mentioned. This opposition was dismissed, and we can see nothing in it which looks like a confirmation of the sale made by the syn-dic ; on the contrary, it denies and contests the validity of the whole proceedings in the strongest terms.
Our attention has been directed to some facts which it is contended amount to a ratification of the syndic’s sale on the part of the plaintiffs. The sale took place on the 26th of September, 1831. The tableau of distribution was not filed until the 14th of January, 1835. The opposition of the plaintiffs was filed on the 21st of Januaiy, and the decree homologating the tableau was dated on the 3d of July, 1835. The plaintiffs were not placed on the schedule presented by their mother, but were on .the tableau of distribution, as before stated. Beside the tract of land sold to the defendant, there were two other tracts of land, a house and lot, and several slaves, ceded by their mother to her creditors, and sold by the syndic on the 26th of September, 1831. It [175]*175appears, that on the 27th day of June, 1835, Mr. Buhler, the sheriff of the parish of East Baton Rouge, who -was the syn-die, paid on the order of Francis Rivas, one of the plaintiffs, the sum of two hundred and sixty-nine dollars and eighty-four cents ; this payment was made to a judgment creditor of Rivas. But at this time the opposition of the plaintiffs contesting the validity of the proceedings was pending. The payment of this money, or the receipt of it, under these circumstances, by himself, unless the order or the receipt specified it, we do not think is an acknowledgment of having received a part of the price .of the land in question. There is nothing in his order or in his letter from which this can be inferred.
_ Where the ra-sale* ói^of0 cer-burden of proof alleging it,Pand 'fi-om which the ratification necessarily results, when uve proof! pos1'
There is a receipt of Zenon Rivas for the amount of two instalments due for property bought by Arnous, which he afterwards had purchased. This was received on account of the portion that might be due him, after the settlement of the estate of his mother. But this receipt is dated on the 16th of September, 1833, nearly sixteen months before his name appeared on the tableau of distribution. This can be considered as ratifying nothing but the sale to Arnous.
Mr. Buhler, to whose testimony we desire to give full weight, states, that he has paid the amount due to Francis Rivas, according to the tableau : but he does not state the time nor the circumstances, so that wre can ascertain whether an approval of the sale necessarily resulted from this act. The proceedings in this case have been conducted so loosely, and the parties plaintiff appear throughout to have been so ignorant of their rights, that it is with the greatest caution we should establish inferences to their detriment in relation to what is or what is not, an approval of the proceedings, We must be satisfied, before we can pronounce that this sale is binding on the parties plaintiff, that they have ratified iti Facts, in a case like this, must be established, from, which the ratification necessarily results. The burden of proof is on the defendant. For the doctrine of ratification, as esta--it -rx _ bhshed m England and the United States, see Story's Equity Jurisprudence, section 307, and the authorities therein referred to. [176]*176It is there laid down, that to give validity to a contract which is merely voidable, it must be deliberately, and upon examination confirmed by the party. In the case of a voluntary execution of a contract, under the article 2253 of the Louisiana Code, the party executing it is presumed to know the defects which may exist in it, and to waive them by his free consent. See 8th Toullier, number 519, Commentary on the article 1338, Code Napoleon. But in all cases there must be no question as to the fact of execution. This case turns upon the fact of a voluntary execution, or the want of it. All the acts of the plaintiffs can be accounted for, without a ratification of the sale necessarily resulting from them, and we are of opinion that no such ratification or voluntary execution has been proved. We conclude, therefore, that the land in dispute originally belonging to the plaintiffs’ grand-father, was held by their father as his separate estate, that at his death it descended to them and their sister as his heirs; that the property in it remained in them during their,minority, up to the present time, unaffected by any of the proceedings under consideration, and now of right belongs to them.
To give validity toa contract ■which is merely voidable, it must be deliberately, and upon examination confirmed by the party, to be binding on him.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that the plaintiffs recover from the defendant two-thirds of the tract of land described in the plaintiffs’ petition, and in the defendant’s possession, and that the District Court proceed to make a partition thereof according to law, and to ascertain and establish the value of the improvements made by the defendant on the premises, and his claim against the parties called in warranty; and that no writ of possession issue in this case, until the parties plaintiff shall have paid to the defendant the value of his improvements ; and that the appellees pay costs in both courts.