ART. 1318. [1241.]-Not only the co-heir himself, but the heirs of that co-heir, and any other successor can compel a partition of the estate, and be themselves compelled to make it.

ART. 1319. [1242.]—The right given by the ancient laws to the heirs of a deceased person, to compel the assignee or purchaser of a portion of the succession sold by their co-heirs to retrocede it to them for the price paid for it, is repealed.

ART. 1320. [1243.]-It is not necessary, to support the action of partition, that the co-heirs, or the party commencing it, should be in actual possession of the succession or of the thing to be divided; for among co-heirs and co-proprietors, it is not the possession but the ownership, which is the basis of the action.

C. C. 1304 (1227), 1306 (1229); 19 A. 293, 294.

ART. 1321. [1244.]-It follows from the provisions of the preceding article that the partition can be demanded, even though one of the heirs should have enjoyed some part of the estate separately, if there has been no act of partition, nor possession sufficient to acquire prescription.

C. C. 1304 (1227), 1306 (1229).

SECTION 3.

In what Manner the Judicial Partition is Made.

ART. 1322. [1245.]-If all the heirs are of age and present or represented, the partition may be made in such form and by such an act as the parties interested agree upon.

C. N. 819; 3 N. S. 409; 3 L. 128; 9 A. 478. Acts 1855, p. 337.

ART. 1323. [1246.]-If, on the contrary, all the heirs are not present, if there be among them minors or persons interdicted, or if all the heirs of age and present do not agree to the partition or on the manner of making it, it shall be made judicially and in the form hereafter prescribed.

C. N. 819; C. P. 116, 123, 964, 1020 et seq.; 6 L. 472; 17 L. 346; D. Sec. 2667, 3719, 3865. Acts 1869, No. 134.

ART. 1324. [1247.]-Every judicial partition shall be preceded by an inventory, in which the effects to be divided shall be appraised, according to the form prescribed for public inventories.

C. C. 1106 (1098); C. N. 824; 2 N. S. 1; 5 N. S. 551; 2 A. 553; 12 A. 549; 14 A. 154; 18 A. 596. 3.3a-49-36 a 318

ART. 1325. [1248.]-The public inventory, which may have been made by the parties interested at a time not exceeding one year previous to the suit for a partition, shall serve as the basis of the partition, unless one of the heirs demands a new appraisement, and proves that the effects mentioned in the inventory have

not been estimated at their just price, or at the value they have acquired since the date of this act.

14 L. 272; 12 A. 549; 22 A. 394.-33a-4936 a 318 ART. 1326. [1249.]-In this case the judge is bound to order a new appraisement of the effects to be divided, which shall be made by experts appointed by him to that effect, and duly sworn by the officer who is appointed to make the proces verbal of the appraisement.

(Am'd.) C. C. 1357 (1279); C. N. 822; 12 A. 549; 22 A. 394.

ART. 1327. [1250.]—The action of partition and the contestations which may arise in the course of the proceedings, are to be brought before the judge of the place where the succession is opened, though some of the parties interested may have their domiciles out of the jurisdiction of the judge.

C. C. 935 (929); C. N. 822; C. P. 162, 1022; 2 A. 329.

ART. 1328. [1251.]--The judge, before whom the action of partition is brought, is bound to pronounce thereon in a summary manner, by which is always meant with the least possible delay and in preference to the ordinary suits pending before him.

C. P. 754 et seq.

ART. 1329. [1252.]-The suit for partition ought to be instituted by the heir who wishes the division; the co-heirs or their representatives must be cited, in order that the partition may be ordered, and the form thereof determined, if there should be any dispute in this respect.

C. P. 1024; 3 L. 128; 16 L. 157; 17 L. 348; 19 L. 36; 4 A. 56, 260; 14 A. 179, 181; 15 A 250, 251, 306, 307; 18 A. 596.

ART. 1330. [1253.]-He who sues another for a partition of the effects of a succession, confesses thereby that the person against whom the suit is brought is an heir.

C. P. 1023; 14 A. 179, 181.

ART. 1331. [1254.]—If a partition is to be made among the children or descendants of the deceased, and one of the heirs alleges that his co-heir is bound to collate an immovable, which has been given him by the deceased, and requires that his co-heir should decide on the manner in which he wishes to make this collation, the judge, if it be proved that the co-heir is bound to collate the property, shall order that the donee decide thereon, within a term to be fixed by the judge, which can not exceed three days from the day on which the order has been notified to him, if he or his representative is found in the place.

ART. 1332. [1255.]-If the donee, who is bound to collate an immovable given him by the deceased, declare within the term fixed, as aforesaid, that he will return it in kind, the property, from that instant, becomes united to the other effects of the succession which is to be divided.

ART. 1333. [1256.]-But if the donee declare that he will not return the immovable property which has been given him, but will take his share in the effects of the succession, after deducting the value of such immovable property, or if he permits the term, granted to him to make his decision, to expire, without deciding on the manner in which he will make his collation, he shall lose the right of returning this property in kind.

19 A. 95.

ART. 1334. [1257.]-Whether the donee has decided that he will collate in kind or by taking less, the co-heirs, to whom the collation is due, have the right, as soon as the donee has decided▲ thereon, to require and obtain an order that the property subject to the collation be appraised, as is prescribed in the following section, in order that it may be included among the effects to be divided for the sum at which it is appraised.

C. C. 1354 (1276), 2361 (2341).

ART. 1335. [1258.]-All points, arising before the judge having cognizance of the suit for partition, on the manner of making the collation or other operations relating to the partition, being merely incidental to the suit, shall be decided on the simple motion of the party interested in having them decided, the same being duly notified to the other heirs or their attorneys, and a reasonable time being granted to answer thereto.

C. N. 823.

ART. 1336. [1259.]-The judge who decides on a suit for a partition and on the mode of effecting it, has a right to regulate this mode as may appear to him most convenient and most advantageous for the general interest of the co-heirs, in conformity, nevertheless, with the following provisions.

11 L. 439; 5 A. 208; 12 A. 337; 18 A. 576; 24 A. 155.

ART. 1337. [1260.]—Each of the co-heirs may demand in kind his share of the movables and immovables of the succession; but if there are creditors who have made any seizure or opposition, or if a majority of the co-heirs are of opinion that the sale is necessary in order to satisfy the debts and charges of the succession, the movables shall be sold at public auction, after the usual advertisements.

C. C. 1291; C. N. 826; 15 A. 250.

ART. 1338. In all judicial partitions where the property is divided in kind, the mortgages, liens and privileges existing against one of the co-proprietors, shall, by the mere fact of the partition, attach to the shares allotted to him by the partition, and cease to attach to the shares allotted to his co-proprietors. If any return of money be required to be made to any co-proprietor whose share is mortgaged or otherwise encumbered, by reason of the share allotted to him being of less value than the other

shares, then such sums of money shall remain in the hands of the parties bound to contribute them respectively, and shall be secured by mortgage on their respective shares, and be subject to the demand of those creditors of their co-proprietors who possessed mortgage or privilege claims against him, and according to the rank and priority of the creditors.

(New Article.) C. C. 345 (339); D. Sec. 2443, 2664. Acts 1855, p. 337, § 3. ART. 1339. [1261.]-When the property is indivisible by its nature, or when it can not be conveniently divided, the judge shall order, at the instance of any one of the heirs, on proof of cither of these facts, that it be sold at public auction, after the time of notice and advertisements prescribed by law, and in the manner hereinafter prescribed.

C C. 1326 (1249); C. N. 827, 1686, 1687, 1688; 11 L. 439; 1 R. 512; 3 R. 48; 2 A. 553; 11 A. 388; 14 A. 173; 15 A. 697; 18 A. 282; 23 A. 231; 24 A. 155. ART. 1340. [1262.]-It is said that a thing can not be conveniently divided, when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it.

15 A. 697; 18 A. 282.

ART. 1341. [1263.]-When the effects of a succession are to be sold, in order to effect a partition, if all the heirs of the deceased are absent, minors or interdicted, the judge may, at the instance of the tutors and curators of these heirs, and on the advice of the family meeting of those of the heirs who are minors or interdicted, order the sale to be made on certain terms of credit and on proper security, unless the payments of the debts of the succession require that the sale be made for cash.

C. C. 341 (336), 342 (337), 2361 (2341); 12 A. 153; 14 A. 178; 15 A. 251, 697. D. Sec. 1500, 2342, 2359, 2667, 3719, 3865.

ART. 1342. [1264.]-If there be, among the heirs of the deceased, any who are of age and present, and who demand that the sale be made for cash, it shall be made for cash, for a sufficient sum to cover the portion coming to them, and on a credit for the balance, on the terms prescribed by the other heirs.

But on the partition of the proceeds of the sale, the whole amount shall be reduced to its cash value, by deducting from the whole sum to be paid, eight per cent. per annum, and those heirs who require their portion in cash, shall receive it on the whole amount thus reduced.

(Am'd.) 1 A. 212; 13 A. 97, 162; 14 A. 178; 15 A. 251, 252; D. Sec. 431, 2666, 3689. Acts 1853, No. 190, p. 157.

ART. 1343. [1265.]-Any co-heir of age, at the sale of the hereditary effects, can become a purchaser to the amount of the portion owing to him from the succession, and he is not obliged to pay the surplus of the purchase money over the portion com

ing to him, until this portion has been definitively fixed by a par

tition.

C. C. 1146 (1139), 2361 (2341), 2625 (2603); 14 L. 111; 19 L. 557; 3 R. 439; 4 R. 37; 12 R. 666; 2 A. 412; 5 A. 208; 12 A. 337; 13 A. 97, 591; 14 A. 181, 722; 15 A. 250, 252; 16 A. 191; 22 A. 250; 24 A. 319.

ART. 1344. [1266.]-The minor co-heirs may also become purchasers of the hereditary effects, by the intervention of their tutors or curators, or by their assistance, if they have been specially authorized thereto by the judge, with the advice of the family meeting.

C. C. 2625 (2603); 14 A. 180, 722; 15 A. 250.

ART. 1345. [1267.]-When the judge has ordered the partition, and regulated the manner in which it shall be made, as well as the collations, if the case require it, he shall refer the parties to the recorder of the parish or a notary appointed by him to continue the judicial partition to be made between them.

C. N. 828; C. P. 1027; 1 R. 512; 12 A. 337, 549.

ART. 1346. [1268.]—If the heirs who have instituted the suit for partition be of age and present, and the judge has fixed the mode of making it, whether in kind or otherwise, nothing shall prevent the heirs from continuing their partition amicably and in the manner they think proper.

SECTION 4.

How the Recorder of the Parish or the Notary is Bound to Proceed in the Judicial Partition.

ART. 1347. [1269.]-The officer appointed to make the partition is bound, within fifteen days at the farthest from the notice of his appointment, to notify the heirs or their representatives, in writing, of the day, hour, and place in which he is to commence his work, sufficient time previous thereto, to enable them to attend, if they think proper.

(Am'd.) 4 L. 59; 16 L. 157.

ART. 1348. [1270.]-As the business of partitions sometimes requires several days, the officer may divide his proces verbal, and make as many vacations or sittings as he thinks proper. He can even defer the closing of it, if one of the parties requires it, in case any contestation arise on the manner of effecting it, and it becomes necessary to refer to the judge to have them terminated before proceeding farther.

C. C. 1368 (1290); C. P. 1028; 20 A. 358; 21 A. 288.

ART. 1349. [1271.]-On the day appointed for the partition, the officer shall begin by settling the accounts, which each of the heirs may owe to the succession.

5 A. 561; 15 A. 351.