THE judgment of the court, on an application for a re-hcaring made in this case by the counsel for the appellants, was pronounced (Slidell, J. not sitting,) by
In the opinion heretofore read in this cause we said, that the rights of the parties depended entirely upon the agreement entered into between them on the 11th November, 1846, which we held to be a compromise.
The terms of the agreement leave no doubt as to .the intentions of the -parties. It is admitted that Sarah Connolly stipulated: 1st,-to convey to her mother a piece of property, designated as the homestead, free from a mortgage with which it was then encumbered. 2dly, that she admitted that an adjoining lot of ground, title to which then stood in her name, had been devised by her deceased brother, Felix Connolly, to the childron of Mrs. Elliott, and became bound to convey title to them, if the act be obligatory. These arc the two obligations which she *164incurred, in consideration of which the remaining heirs of the deceased abandoned the succession of F. Connolly in her favor.,
It is contended, in the application for re-hearing that, in giving effect to'this instrument, important principles of law have been violated, in this, that the instrument is neither signed by Mrs. Connolly, Mrs. Elliott, nor John Connolly whose assent to the stipulations is not otherwise proved; and that Mrs. Mitchell was a married woman acting without the authorization of her husband. In view of these supposed defects, it is asserted, with apparent seriousness, that the in. gtrument must be treated as a nulliiy.
Two important facts appear to have escaped the attention of counsel: 1st. That the defendant, prior to the inception of this suit, had actually executed the agreement as far as relates fo her mother, by making to the latter a donation by public act of the property described as the homestead, .and that in her answer filed in the cause she has not asked the revission of the motion. To this extent she has Siven voluntary effect to the agreement.
2dly. That Mrs. Mary Connqlly, John Connolly, Mrs. Elliott, and Mrs, Mitchell, are all parties plaintiff in this action; that the two latter are joined and assisted by their husbands, and that iti their petition tlpey make the following averment: “Your petitioners further show that the sqid Sarah Connolly acknowledged in writing after the death of Felix Connolly, that the two adjoining lots (^describing them,) belonged to the children of your petitioner William, Elliott, and was bequeathed to them by their deceased undo, Felix Connolly, which was done to avoid litigation, and which acknowledgement, being founded in fact, your petitioners pro desirous should be confirmed.” The prayer of the petition is in accordance with this averment. a
This is pertainly an affirmance of the agreement in the most express terms, by pll the parties, and as regards the married wgmen the affirmance is made with the authorization of their husbands. No circumstance occurred between the date of the agreement and the commencement of this suit indicating an intention on the part of tire defendant to repudiate the contract, or treat it as null, because it had pot beep signed by all the parties, or because two of the parties were not authorized by their husbands to enter into it, or for any other cause. But, on the ¡contrary, .she went on, as we have seen, to fulfil the most important and onerous of ifs stipulations.
As regards the second stipulation, we have, lior acknowledgement in writing ¡that a certain lot belongs to the children of Mrs. Elliott, in virtue of a bequest made by ¡their uncle Felix Connolly. Her co-heirs admit the same fact in their petition, and ask that the property be decreed to the minors. If the agreement were liable to all the objections urged by the defendant’s counsel, if would still be valid .as her admission of the right of property in the children of Mrs. Elliott.
It did pot escape our attention, qii the first examination of the opuse, that the district judge had deviated in his decree from the precise terms of the agreement, by awarding to the minor children of Mrs. Elliott a sum of money, instead of the specific property claimed. Not only is the fact adverted to in pur opinion, but, before rendering the decree, the attention of one of the defendants’ counsel was specially directed to it, and to the circumstance that it was not made the subject of complaint in his brief. Enquiry was made into the reasons of the district ju'dge for this part of his decree, and whether, in the event of effect being given by this court to the agreement as a compromise, the silence of the defendant was to be considered as an assent that the sum awarded was a fair equivalent for tlie property claimed. No answer having been made, after reasonable delay, we *165concluded from the continued silence of the defendant, after notice, that this fea&pre of the judgment was not objected to. The first complaint made was upon the application for a re-hearing. Neither arguments nor authorities were necessary to satisfy us of the error into which the district judge had fallen on this point. The error was manifest, and had attracted our notice, and we only desired to be informed whether the defendant considered it more onerous than a judgment for the specific property, and desired its correction. The original decree must be changed as regards the children of Mrs. Elliott to one for the lot claimed.
It is, therefore, ordered that so much of the judgment appealed from as awards to Eleanor Connolly, as tutrix of her minor children Mary G. Elliott and William Elliott, the sum of $1,500, with legal interest, be reversed; and that said Eleanor Connolly, as tutrix of her said minor,children, recover of the defendant Sarah Connolly, the lot of ground claimed by them in the petition, to wit, lot number nine in the square bounded by Colyseeum, Robin, Magazine and Race streets, in faubourg Annunciation, in Municipality no. Two, of the city of New Orleans, according to a plan drawn by Joseph Pilio, on the 24th November, 1838, and deposited as plan no. 19, in the book of plans of J. B. Marks, notary public.
In other respects, the judgment appealed from is affirmed; the appellees paying the costs of this appeal, and the defendants those of the court below.