The opinion
On Rehearing.
Blanchard, J.
It is insisted, on behalf of R. A. and A. S. Giddens, that the judgment of the court decreeing that, in the event the proceeds of the sale of the community interest in the “Sprowls” place be not sufficient to settle the claims asserted on behalf of their father against the community, and those held by themselves, as heirs of their mother, against it, the same be applied to their payment pro rata, is erroneous, and that they are entitled to be paid the amount of their claim by preference.
D. M. Giddens himself asserts no claim in opposition to his sons. On the contrary, he is on their side of this controversy. But his mortgage creditor, Pior, tutor, asserts it for him, and is entitled to do so under the law, forcing a settlement of the community, to the end that D. M. Giddens’ interest therein, both as creditor and part owner, may be subjected to the satisfaction of his mortgage rights.
When the wife died the acceptance of the community by R. A. and A. S. Giddens, then minors, was, by operation of law, with benefit of inventory. C. C. 977. But time went on, there was no settlement of community affairs, the husband continued in possession and enjoyment of the community property, until, finally, the heirs of the wife became of age and demanded a settlement from their father. He *226 made a settlement and turned over to them all the real property on hand, under, the pretence that it was paraphernal in character and theirs by inheritance from their mother. This is the same property that is adjudged by this court to be community property to the extent of five-eighths thereof. They received it and took possession thereof as owners, ignoring entirely the rights of mortgage thereon claimed by Pior, tutor.
On coming of age, while demanding and receiving this settlement and entering into possession of all the property as the result thereof, they failed to renounce the community. C. C. 1013, 1014, 1017, 1020, 1032, 1033, 1050, 1054, 2410, 2423; Succession of Baum, 11 R. 314 . And the serious effect of this omission in cutting them off from competition with this creditor for the husband’s share of the community funds might be urged with force. Succession of Plantevignes, 28 An. 562; C. C. 988, 987, 994, 1009, 1010.
But a more equitable and legally satisfactory method of settling this controversy is at hand.
At the dissolution of the marriage, the community, as we have seen, was indebted to R. A. and A. S. Giddens in the sum of fifteen hundred dollars with five per cent, interest thereon from December 6, 1871, and in the further sum of three hundred dollars with like interest from January 21, 1871.
At the same time it owed the various creditors, mentioned in the opinion in chief, amounts aggregating $2626.18.
There was no registry of any legal mortgage affecting the community property. R. A. and A. S. Giddens could claim no priority of payment over the third persons who were creditors of the community along with themselves, The respective claims of these several creditors were, therefore, as between themselves of equal rank and concurrent against the commnnity property.
The surviving husband, out of his own funds, paid all of these outstanding community debts, except that due R. A. and A. S. Giddens, and, by subrogation, became a creditor of the community for the claims so paid by him.
Thereupon he and his two sons, being the only creditors of the community and owning together in equal proportion (he one-half, they the other half) all the community property, their respective claims against the community instantly extinguished each other, pro tanto, by compensation and confusion. C. C. 2207, 2208, 2217, 2218; *227 Heirs of Gee vs. Thompson and Burns, 41 La. An. 353; Newman vs. Cooper, 50 La. An. —
The wife died in the latter part of 1873. Taking the first of January, 1874, as the day when this extinguishment took place, the account at that time stood thus:
Aggregate amount oí community debts paid by the husband.................. $2,626 18
The Briggs cotton claim due the heirs...................................... $1,500 00
With 5 per cent, interest from December 6, 1871 to January 1, 1874 ......................................................................... 154 00
The amount due the heirs on account of money supplied i by Mrs. Louisa Armistead and used in part payment of land bought from Brown .............................................. 300 00
With 5 per cent, interest from January 21, 1871, to January 1, 1874 ............................................... 44 00
Total due R. A. and A. S. Giddens...............,...................................... 1,993 00
Deducting this last amount from the sum of the community debts paid by the husband, a balance of.......................................................... $628 18
is left, and represents the amount due D. M. Giddens, on the first of January, 1874, by the community.
From this must be deducted the three hundred and twenty-nine dollars and sixty-one cents, being three-eighths of eight hundred and seventy-nine dollars, paid or assumed by Beaird in the exchange between the Armistead place and the Sprowls place, due the heirs as of date December 20, 1875, as shown in the opinion in chief.
This left a balance of two hundred and ninety-eight dollars and fifty-seven cents due the husband by the community, and the same is still unsettled. It is due, however, without interest. Succession of Fitzwilliams, -3 La. An. 489; Succession of Bringier, 4 La. An. 389.
The community share of the Sprowls place (see opinion in chief) must be sold to pay this balance, and the same, when realized, is tobe applied on the debt due by D. M. Giddens to Pior, tutor, and secured by mortgage on his interest in the community share of the Sprowls place; and the residuary interest of the said D. M. Giddens in the proceeds arising from the sale of the community share'of the Sprowls place, after payment of the said balance of two hundred and ninety-eight dollars and fifty-seven cents, must be applied to the payment of the remainder of the plaintiff’s claim, whose mortgage is recognized as binding upon the remaining interest of said D. M. Giddens in the community share of said property.
It is, therefore, ordered that the decree hereinbefore rendered be amended so as to read as follows:
The community of acquits and gains formerly existing between D. M. Giddens and Mary Jane Giddens, his wife, be decreed to be the *228 owner of an undivided five-eighths interest in the real estate known as “ the Sprowls place,” acquired from. J. H. Beaird by act of exchange executed on December 20, 1875.
It is further decreed that the community between said Giddens and his wife is indebted unto D. M. Giddens in the sum of two hundred and ninety-eight dollars and fifty-seven cents, for which judgment is hereby rendered in his favor.
It is farther decreed that the five-eighths interest of the community in the Sprowls place be sold under execution to pay said indebtedness of the community, and to ascertain the residuary interest of said D. M. Giddens in said community share.
It is further decreed that the payment accruing to said D. M. Gidr dens on said indebtedness due him by the community, as well as his residuary interest in the community proceeds, be applied to the payment of plaintiff’s special mortgage and judgment for eleven hundred dollars, with eight per cent, interest thereon from April 1, 1890, less a credit of eighty-eight dollars paid February 24, 1891, and costs of suit in both courts.
It is further decreed that, as thus amended and substituted, the judgment appealed from is affirmed.
Rehearing refused.
Watkins, J., recused.