CHAPTER VIII - OF PARTITION AMONG HEIRS AND OF THE COLLATION OF GOODS
SECTION I - OF THE NATURE OF PARTITION AND IN WHAT MANNER IT IS MADE
Art. 155. When a person deceased has left in this territory some property to be inherited by several heirs testamentary or legal or others, such heirs are seized of that estate and become proprietors and possessors of the same, each for his individual share, so that a community of property is formed between them.
Art. 156. None of the co-heirs or co-proprietors of an undivided thing or estate, can be obligated to remain always in that state: thus any of the said co-heirs or co-proprietors of age or minors, can compel the others to a partition of the estate which they possess jointly, whatever be the lapse of time during which the joint tenancy may have lasted; and that right is exercised by what is called the action of partition.
Art. 157. The partition is the separation, division or distribution which is made of a thing common to several co-proprietors or co-heirs who enjoyed the same undividedly.
Art. 158. Every partition is either definitive or provisional; definitive partition is that which is made in a stable and irrevocable manner.
Provisional partition is that which is made provisionally of certain things before the rest can be partaken; and even of every thing that is to be partaken, when the parties are not in a situation to make an irrevocable partition.
Art. 159. The partition may be required notwithstanding any convention to the contrary, because such convention being contrary to the nature of the community of property, cannot be valid.
Art. 160. The partition can be claimed even though one of the co-heirs should have enjoyed separately some part of the estate, if there has been no act of partition, nor a possession sufficient to acquire prescription.
Art. 161. There is no occasion for partition if the deceased has regulated it between his lawful heirs or strangers; and in such case the judge must follow the will of the testator.
The same thing takes place where the testator has assigned the paternal legal portion of his children upon distinct parts of the estate.
Art. 162. The partition is considered as containing alienation and sale.
From whence it follows, that to exercise the action of partition in behalf of minors or persons interdicted, it is necessary that their tutors or curators be authorised thereto by the judge, upon the advice of a family meeting, as it is prescribed for the sale of their goods.
Art. 163. A husband may, without the co-operation of his wife, compel her co-heirs to the partition of the moveable property of the succession accruing to her, and be compelled himself to it, as being the master of the personal actions of his wife.
But he cannot without his wife, solicit the final partition of the immoveables accruing to her; he may only when he has a right to the enjoyment of said property by the effect of his marriage, ask the provisional partition of it.
The co-heirs of the wife, when they wish to compel her to a final partition, must sue the husband and wife jointly.
Art. 164. Not only the co-heir himself, but the heirs of that co-heir, and any other successor, can compel and be compelled to the partition of the estate.
Art. 165. The partition is made by forming several lots proportioned to the right that each co-proprietor has in the thing.
That partition can be made amicably or judicially.
Art. 166. When all the co-heirs of a succession are of age and present, or duly represented in the territory, they are at liberty to make their partition amicably in such form as they please, if they agree among themselves.
But if they do not agree as to the mode or form of their partition, or if there is among the co-heirs, some minor, interdicted or absent heir, the partition shall be made judicially, with the formalities hereafter prescribed.
Art. 167. All judicial partitions must be preceded by a faithful and exact appraisement of the moveables, immoveables, and other objects to be partaken, which appraisement shall be executed by experts appointed to that effect by the judge ex officio, and duly sworn by the public officer charged with the recording of the proces verbal of appraisement of said experts.
Art. 168. The proces verbal of the experts must set forth the things and their value; it must express whether the object appraised can be conveniently partaken, and in what manner, and finally fix, in case of variance, each of the lots that can be formed out of the whole, and their value.
Art. 169. At the time of executing the said proces verbal, the creditors of the succession may come forward and form any opposition they may think fit for the preservation of their rights.
Art. 170. Each of the co-heirs may demand his share in nature of the moveables and immoveables of the succession, but if there are creditors who have made any attachment 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 moveables shall be sold at public auction after the usual advertisements.
Art. 171. When things are by their nature indivisible, or when they cannot conveniently be partaken, their sale must be proceeded by cant or licitation.
Art. 172. Cant or licitation is the act by which an immoveable which is common to several persons, and cannot be partaken conveniently, is adjudged to one of them, or to some other person.
Art. 173. The right to a cant or licitation is always impliedly included in the action of partition, that is to say, that if the partition of the thing itself cannot be made conveniently, it shall be a matter of course to order the cant or licitation. Thus, for ordering the cant of a tenement or other immoveable, there needs not be a physical impossibility to divide it, it suffices that such division may cause inconvenience or loss to any of the co-heirs or co-proprietors.
Art. 174. The cant or licitation is not a sale; it is a mode of partaking, one of the effects of the action of partition of a thing held in common; it is the complement of the partition.
Art. 175. The cant or licitation after it is ordered, may be made amicably, and in such manner as the heirs may think fit, if they are all of age, and present in the territory, or duly represented therein, and if they agree upon the subject.
But if one of them refuses, or is under age, interdicted or absent, the cant or licitation then cannot take place but at a public sale, and after the usual advertisements.
Art. 176. After the moveables and immoveables to be partaken have been appraised and sold, if the case require it, the judge sends the parties before a notary to proceed to the partition.
Art. 177. The notary charged with the partition, first proceeds to form the mass of the estate, that is to say a full account of the objects which are to be partaken, of their value and of the charges which must be first deducted or divided among the heirs. That account is generally found by means of the inventory, if any has been made.
The notary proceeds likewise to the liquidation of the accounts which the co-parceners may have among themselves.
Art. 178. The said mass must also include the collations which each co-parcener may have to collate, conformable to the rules hereafter prescribed, for gifts so made to him, or debts by him due; and likewise the contingent property which may be among the estate.
Such doubtful property may be partaken or remain undivided for the joint account of the heirs, to be recovered by one or all of them, as they may agree.
Art. 179. If the collation is not made of the thing in nature, the co-heirs to whom it is due, take previously out of the mass of the estate, a portion equal to it.
Such previous recoveries must be made, as much as possible, upon objects of the same nature, quality and goodnes, as those which are not collated in nature, as aforesaid.
Art. 180. The mass and previous recoveries must be immediately followed by an account of all the lots; and each lot separately must itself contain a precise and clear statement of the objects composing the same.
Art. 181. There must be as many lots as there are heirs partaking by heads.
If several heirs come by right of representation, they shall be entitled to one lot only for the root which they represent, saving to them the faculty of subdividing each lot among themselves.
Art. 182. In the formation and composition of the lots, care must be taken to avoid as much as possible, the cantling of tenements and the division of cultures.
And it is convenient to include, if possible, in each lot, the same quantity of moveables, immoveables, rights and credits of the same nature and value.
Art. 183. When the lots are of unequal value, such inequality is compensated by means of a return of money, which the co-heir having a lot of more value than the other, pays to his co-heirs.
Art. 184. The lots are formed by skillful persons chosen to that effect, and sworn by the notary charged with the partition and distribution of the lost, and they are drawn among the co-heirs.
Art. 185. Before the drawing of the lots, each co-parcener is admitted to set forth his objections against their composition. In case there should occur any such or such like objections in the partitions referred to a notary, as aforesaid, it shall be the duty of such notary to suspend his proceedings; and after having reduced to writing the difficulties and pretensions of the parties, to send them before a judge for his decision.
Art. 186. If in a partition there are several minors having the same tutor or curator, it shall be necessary on account of their opposite interests, to appoint to each of them a special tutor or curator whose functions shall end with the partition.
Art. 187. The rules established for the division of masses to be partaken, are equally applicable to the subdivisions to be made between the individual co-parceners of a root.
Art. 188. Partitions made agreeably to the above rules, by tutors or curators of minors, interdicted or absent persons, are definitive, but they are only provisional, if the said rules have not been observed.
Art. 189. After the partition, delivery must be made to each of the co-parceners, of the title particular to the objects fallen to his share.
The titles of a divided property remain in the possession of the heir who has the most considerable part of it, with the obligation of assisting his co-parceners with them when required.
Titles common to the whole inheritance, shall be delivered to the person chosen by all the heirs to be the depository of them, on condition to assist them with the said documents, as often as required.
If they should not agree on that choice, such deposition shall be appointed by the judge.
Art. 190. If after the partition, a discovery should be made of some property not included in it, the partition must be amended or made over again, either in totality or of the discovered property alone.
Art. 191. If after the partition an heir should happen to come whose death had been presumed, on account of his long absence, or whose right was not known; as if a second testament unseen until then, should entitle him to inherit with the others, the first partition would be annulled and it would be necessary to make another with him of all the property remaining in nature, and of the value of whatever might have been consumed or alienated, in order that he should have the share which he was entitled to, upon the whole.