Petitioners allege that their mother, their tutrix, owes them $669 22, according to her account filed in the Second District Court of New Orleans on the twenty-third of April, 1859; that on the twenty-sixth of September, their mother acquired a house and lot at the corner of Rampart and Customhouse streets, in this city, which is now in possession of the defendant. They claim a tacit mortgage upon this property to the extent of their mother’s indebtedness to them, and, after due notice, seek to have the same recognized, and ask that the defendant be ordered to pay them the amount due, or, in default thereof, that the property be sold to pay the same.

The defendant answered, calling Mrs. John Gauche, the representative of John Gauche’s estate, from whom he purchased, in warranty. Mrs. Gauche called in Gallier and Esterbrook, from whom John Gauche, purchased.

Mrs. Gallier, representing her husband deceased, denied that there existed at the time of the sale any mortgage on the property in favor of the plaintiffs, and that the mother’s acknowledgment of the same is false and fraudulent.

Esterbrook makes the same answer. There was a judgment in favor of the plaintiffs, and against the warrantors seriatim. Messrs. Gallier and Esterbrook appeal.

*393Whether the tutrix was or was not indebted to her minor children is a matter of indifference, inasmuch as their mortgage was not recorded by the first of January, 1870. It was only recorded on the ninth of May, 1870.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed as regards the appellants, and that there be judgment in their favor, with costs in both courts.

Behearing refused.