delivered the opinion of the court.

-In this case, the syndics representing the -estate of Benjamin Morgan, deceased, claim a balance on three notes — two amounting to ten thousand three hundred and eighty-two dollars and thirty-seven cents,.executed jointly by Cortes and Davenport; and one for five thousand dollars, made by Cortes I alone. On these notes, the evidence clearly shows a balance remains due and unpaid. But the defendants deny the legality and justness of the consideration for which they were given, and plead in re-convention, claiming a considerable *189sum of money as due to Cortes, from Morgan’s estate, on a fair settlement of accounts as they stood between these parties at the time the two notes for ten thousand three hundred and eighty-two dollars and thirty-seven cents, were given by Cortes and Davenport to the payee. This defence is sustained by the court below, and judgment was rendered in favor of the succession of Cories (he being then dead) on the plea of re-convention against the estate of Morgan for a large sum; frpm which the plaintiffs appealed.

We assume it as true that the facts of the case justify the judgment of the District Court, if that tribunal was correct in the opinions which governed it in relation to questions of law.

The evidence shows that Morgan and Cortes had been for many years previous to 1819, co-partners in trade in a commercial establishment in the town of Natchitoches. That in the month of February of the year last mentioned, an inventory was made by Cortes, assisted by James Locard on the part of Morgan, of all the property then belonging to that concern, consisting of debts due to the partners and the mer'chandise on hand. This inventory showed a large amount of profits, and was made with a view to a partition between the partners. Instead, however, of dividing in kind, Morgan sold out his interest to Cortes for ten thousand dollars, which rvas to be paid according to the notes of the latter, given jointly with Davenport. It is further shown by the evidence, that the profits assumed in the inventory, proved to be in a great degree illusory, in consequence of the insolvency of the greater number of the debtors to the partnership; thereby reducing the common stock to a much smaller sum than was imaeined at the time Cortes purchased from Morgan his o 1 interest.

The questions of law arising from these facts are to be solved principally by the provisions of our old Civil Code relating to partitions; the most important of which is to ascertain yvhether a vendor of his interest in an undivided property is bound in warranty to the vendee ; and is under such warranty obliged to ansAver for loss'hccasioned by the insolvency of debtors, whose debts were included in the sale.

*190The article 239, page 204, of the old Civil Code, declares that co-heirs of the partition, remain respectively warrantors. one towards the other, for the trouble and evictions, which proceed from a cause anterior to the partition. Article 242, of the same page, states, that 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 really exist in nature. The other of active debts and other rights • and with respect to these, they are not only guaranteed as belonging to the succession, but such as they appear to be ; that is to say, as being effectually due to the succession, and debtors, solvent at the time of partition; and who shall be so when the debt will become payable, &c. Article 243, the warranties explained in the foregoing articles, exist of right anc^ would be implied, and the heirs bound to them reciprocally though no such thing should have been expressed in the ... partition, &C.

These appear to be the principal warrantees between co-heirs, in a partition as established by the code, the rules of which are also applicable to the present case, according to the article 60, found at page 400, of that authority, where it treats of the different manners in which partnerships end.

. 7 „„„ . , , Ihe article 250, page 206, enumerates the causes which authorise the rescission of a partition ; among which lesion of more than one-fourth part of the true value of the thing is one-; and that on which the defendants’ mainly rely. Article 253, provides that this action of rescission takes place, not only against all acts bearing the title of partition, but even against ~ i t ° 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 according to article 254, this action is not admitted against a sale of hereditary rights, made without fraud to one of t^le heirs, and at his risk by the other co-heirs, or any of them.

As we have already shown by the article 60, page 400, of the Coáe> tllat tlie rules concerning the partition of inheritances, apply to ordinary partners; and as there is nothing *191produced, which excludes from the same rules, partitions made by commercial partners, the sole question which remains in this case, is to ascertain, whether in a sale from one partner to another, made communi dividendo, the vendee is presumed to take the property, purchased at his risk 1 and consequently has no claim in warranty against the vendor.

This question seems to have attracted the attention of the commentators on the Code Napoleon, in relation to articles of that code, similar to those cited from our old Civil Code : And one of them (held in high repute as a lawyer) declares it as his opinion, that risks must be expressly assumed by the vendee, in case of sale by co-heirs: See 4 Merlin, verbo droit succession. This we believe to be a correct interpretation of the rules relating to the partition of successions. And as partitions between all partners, are subject to the same rules, it follows as a necessary consequence, that they must be governed by the same interpretation. In the sale now under consideration, which was made to effect a division of the common property of Morgan and Cortes, the latter, who was the vendee, did not expressly take on himself, the risk of the solvency of their debtors. And having shown lesion in the sale, above one-fourth, ought to be relieved against it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be affirmed with costs.