delivered the opinion of the court. An action was commenced against the present plaintiff in the district court in 1819 by the defendants heirs of his wife, to set aside a sale made by him, on the ground of its being made in fraud of their rights. The parties agreed, and it was adjudged that the sale be set aside, and that he should keep the property its estimated value, and to pay the residue to the heirs, after the debts of the community were discharged.

The present suit is brought to establish, contradictorily with the heirs, the amount of the debts. They pleaded that the estimation was made in fraud, &c. During the trial the district judge conceived that he had no jurisdiction of the first suit, so far as its object was the liquidation of the succession; he therefore reversed all the former part of his judgment relating thereto, and left in force that, which annulled the sale. The plaintiff appealed.

This court has decided in the case of Turner vs. Collins, vol. 1, 371, that the surviving partner may demand from the heirs of the *38deceased a division of the partnership property in the district court. A suit for such a partition presupposes a liquidation, nay, the payment of the debts. Its object is to compel the holder of the property to surrender it; the creditors of the succession are not interested in it.

It is therefore ordered, adjudged and decreed, that the last judgment of the district court be annulled, avoided and reversed, and that the case be remanded for further proceedings, and that the defendants and appellees pay costs in this court.