#### Willo Dean BYNOG, Administratrix of the Estate of Celia Burns Jowers, Plaintiff-Appellee, v. Sam J. FERTITTA, Defendant-Appellant.

No. 3790.

Court of Appeal of Louisiana, Third Circuit.

May 10, 1972.

See also La.App., 258 So.2d 679.

Ted R. Broyles, Leesville, for defendant-appellant.

Kay, Kay & Stewart, by Stuart S. Kay, Jr., DeRidder, for plaintiff-appellee.

Before SAVOY, MILLER and DO-MENGEAUX, JJ.

SAVOY, Judge.

The Administratrix of the Succession of Celia Burns Jowers brought this suit to rescind the sale of 22% acres of land located in Vernon Parish alleging lesion beyond moiety. On August 8, 196o, Mrs. Jowers sold the property to defendant Sam J. Fertitta for $400. The trial court found the property’s market value to be $147 per acre as of the sale date. The interlocutory decree (required by LSA-C.C. Art. 1877) ordered purchaser to deposit $2,907.50 (the difference between the $3,307.50 value of 22% acres and the $400 paid) plus interest within twenty days or lose the right to confirm the sale by paying the full price. Defendant appealed the interlocutory decree.

Appellant contends that the court erred in finding the property’s value to be $147 per acre, but suggests that the question of value of the land will be presented when the final judgment is appealed. Appellant’s main contention by brief is that *162although the deed conveyed the entire 22% acres, Mr. Fertitta acquired only an undivided one-half interest in the tract. Appellant therefore submits that even if the property’s fair market value was $147 per acre, he is entitled to a decree in this proceeding recognizing that he acquired a one-half interest and proportionately reducing the required payment.

The valuation of the 22% acres as of the sale date is properly before us on this appeal. There is no manifest error in the finding that the property’s fair market value as of August 8, 1966 was $147 per acre. Several witnesses testified that the subject property was more desirable than an adjoining ten acre tract which sold for $200 per acre on December 13, 1965. The Jow-ers 22% acre tract was valued at $100 per acre some six years earlier in a tutorship proceeding for Mr. Jowers’ minor children. Defendant’s only witness testified that the tract was worth only $40 to $60 per acre, but this witness did not refer to compara-bles to support his appraisal.

Defendant appellant’s contention that he did not acquire the entire interest in the 22% acres was not raised by the pleadings. It developed during trial that Mrs. Jowers’ husband died in 1960 and that the property might have been community property. Appellant therefore contends that the Jowers children may claim a half interest in the property. But there is no claim by these children that they own an interest in the property. They are not parties to this suit which was brought by the Administratrix of Mrs. Jowers’ Succession. The deed is of record and is in evidence. Appellant is making a collateral attack on the validity of the deed. Even the heirs, themselves, cannot collaterally attack such a deed. Broxton v. Davis, 80 So.2d 593 at 596 (La.App. 1 Cir. 1955).

The trial court’s judgment is affirmed. Costs of this appeal are assessed to defendant appellant.

Affirmed.

DOMENGEAUX, Judge

(concurring in part, and dissenting in part).

I agree that there is no manifest error in the trial court’s conclusion as to the fair market value of the property in question. I also agree that the transactiQn in question is lesionary, which would be the case even if defendant merely acquired a one-half interest in the property.

I disagree, however, in the affirmation, but conclude that this case should be remanded instead.

In brief before this Court, counsel for appellant states that the amount his client would have to refund would be for the whole of the property purchased whereas the record indicates that he acquired only an undivided one-half interest in said property for the reason that Celia Burns Jow-ers only owned an undivided one-half interest in said property on the date she sold the land involved in this suit to defendant.

The defendant filed an exception of non-joinder of indispensable parties in the trial court. The trial judge stated in the record that he handled (as attorney prior to ascending the bench) 'the tutorship and also the succession proceedings in the Succession of Jack Jowers, and that Celia Burns Jowers only acquired one-half interest in the succession as surviving widow in community, and the children acquired the other half interest. There is also a certified copy of the Succession of Jack Jowers in the record. The real estate is not included, but that is apparently an error in copying for the reason that Item 2 described the personal property, but there was no Item I shown in the judgment.

It would be unpropitious to subject defendant to a separate suit by the heirs, or to have him file further proceedings to determine his rights. If all the parties are before the Court, the matter can be adjudicated in the instant suit.

I am of the opinion that the heirs of Celia Burns Jowers are indispensable parties to this litigation.

*163Under the authority vested in us by LSA C.C.P. Article 2164, we should remand the case in order to permit the impleading of any indispensable party or parties, with right being reserved to all litigants to file appropriate pleadings and to introduce evidence material and relevant thereto.