Table of Contents
SECTION IV - OF THE EFFECT OF PARTITION AND OF ITS RESCISION
Art. 237. Partition is a sort of exchange which the co-perceners make among themselves, one giving up his right in the thing which he abandons, for the right of the other in the thing he takes.
Art. 238. As the co-heirs hold their share of inheritance by the same title and right which is common to all, the condition must be the same, and they must all have the same sureties for what has fallen to their respective lots.
Thus the partition includes this condition, that the portions of the co-heirs remain reciprocally pledged one to the other.
Art. 239. The co-heirs remain respectively warrantees, one towards the other for the trouble and evictions only, which proceed from a cause anterior to the partition.
There is no warranty where the sort of eviction suffered has been excepted by a particular and express clause of the act; the warranty ceases also if the co-heir suffers the eviction by his own fault.
Art. 240. Each of the co-heirs is personally bound in proportion to his hereditary share, to indemnify his co-heir for the loss which the eviction has caused him.
Art. 241. If one of the co-heirs happens to be insolvent, the portion for which he is bound, must be divided equally between the guaranteed and the other solvent co-heirs.
Art. 242. Warranty between co-heirs has two different effects according to the two kinds of property which may exist in the succession.
One composed of things which exist really in nature and in evidence, whether real or personal as a house, a horse, &c. with regard to which warranty goes no further than assuring them to belong to the succession.
The other kind consists of active debts and other rights; and with respect to these they are not only guaranteed as belonging to the succession, but also as being such as they appear to be, that is to say, as being effectually due to the succession and due by debtors solvent at the time of the partition and who shall be so when the debt will become payable, if it is not yet the case.
Art. 243. The warrantees explained in the foregoing articles exist of right, in such a manner that they would be implied, and the heirs bound to them reciprocally, though no such thing should have been expressed in the partition.
But if the heirs had agreed to add or retrench from them, their agreement would be their rule.
Art. 244. There is no warranty where posterior to the partition the thing decays by its nature or perishes by accident.
Art. 245. If since the partition some new debts or new charges, hitherto unknown are discovered, such new charges, whatever they may be, shall be supported by all the heirs, and they shall guaranty one another reciprocally.
Art. 246. Besides the surety or warranty which is the natural result of the partition, there results also from it a tacit mortgage for the execution of all the engagements therein contained, or flowing therefrom; such are,
1st, The return of the monies which some lot might be burthened with.
2d, The obligation of warranty of the lots one towards the other in case of trouble or eviction.
3d, All the personal claims which an heir may be answerable for towards his co-heirs by consequence of his partition.
The co-heir creditor of those things has an implicit mortgage on all the property comprehended in the lots of his co-heirs debtors of the same.
Art. 247. Third possessors having purchased from an heir the property fallen to his lot, acquire prescription against the above incumbrance after a lapse of ten years between present, and of twenty years between absent parties, to be reckoned from the date of the purchase.
Art. 248. The action of warranty between co-heirs becomes prescribed as the ordinary actions, by a lapse of thirty years, to begin from the day on which it is opened, that is to say, from the day of the eviction, and as to the warranty of debts, from the day on which the insolvency has been proved by the discussion of the debtor.
Art. 249. The heir to whose lot an immoveable, or some other thing liable to be mortgaged has fallen, is not bound by the mortgages which his co-heirs may have given on their individual shares of the same, previous to the partition, because the heir, to whose lot such property falls, is considered as having been seized of the whole of it, ever since the opening of the succession.
Art. 250. Partitions made even with majors may be rescinded, as other covenants, for radical vices.
Such as violence, fraud, or error of fact.
They may even be rescinded on account of lesion; and as equality is the base of partitions, it suffices to cause the recission, that such lesion be of more than one fourth part of the true value of the things.
Art. 251. When partitions, where minors, interdicted or absents, are interested, have been made with all the formalities prescribed by law for judicial partitions, they cannot be rescinded for any other cause than those, which give lieu to rescission in favor of majors.
But if those formalities have not been fulfilled, the least lesion shall be sufficient to cause the rescission.
Art. 252. The mere omission of a thing bolonging to the succession, is no ground for rescission but simply for a supplement to the act of partition.
Art. 253. The action of rescission, mentioned in the foregoing articles, takes place in the cases prescribed by law, not only against all act bearing the title of partition, but even against all those which tend to the division of the property between the co-heirs, whether such acts be entitled sales, exchanges, transactions or otherwise.
But after the partition or the act operating the same effect, the action of rescission can no longer be admitted against the transaction made upon the real difficulties which the first act presented, although there should have been no suit commenced on the subject.
Art. 254. The action of rescission is not admitted against a sale of hereditary rights, made without fraud, to one of the heirs and at his risks, by the other co-heirs or any of them.
Art. 255. The defendant against the demand in rescission, may stop its course and prevent a new partition, by offering and giving to the plaintiff the complement of his hereditary portion, either in money or in nature.
Art. 256. The co-heir who has alienated his share or part of it, is no longer admitted to bring the action of rescission for fraud or violence, if the alienation by him made is posterior to the discovery of the fraud or to the cessation of the violence.
Art. 257. If the partition has been regulated by the father among his children, no restitution can take place, even in favor of minors, when by such partition, one or several of the heirs have received more then the others, unless that overplus should exceed the portion which the father had a right to dispose of.
Art. 258. The minor who obtains relief against a partition, relieves the major, for the partition cannot subsist for one and be annulled for another.
Art. 259. The limitation of time for bringing the action of rescission of partition, is the same which the law prescribes for all kinds of rescissions as well for majors as for minors.
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