¶1The opinion of the court was delivered by
¶2The plaintiff brought this suit within four years after reaching his majority against the defendant for an account of tutorship.
¶3The defence is that a settlement has been effected under which a sum of money was paid to the plaintiff, who has receipted therefor, and that before the defendant can be called upon for an account the plaintiff must pay over to him the amount which thus passed.
¶4The plaintiff thereupon filed a supplemental petition in which he attacked the settlement alleged and sought its nullity.
¶5Judgment having been rendered sustaining in part the defence of want of tender, to the dissatisfaction of both litigants, the plaintiff appeals, the defendant asking here an increase of the amount required to be tendered.
¶6It will not do to say that the plaintiff can not, in the same breath, seek the nullity of the settlement and claim to be entitled to retain the amount received under it, until a final adjustment of the differences between him and the defendant, and that the settlement is his title to the money, and if that title is bad he has no right under it to the money, although he may be entitled to recover a larger amount in the end from the defendant.
¶7Defences of that description can be set up and urged by a party against another when contractual relations could have existed and did exist, in reference to the transaction involved; but they are not admissible on the part of one who occupied a fiduciary position towards the claimant and who could have no contractual relations with him before the occurrence of a certain determinate event. R. O. O. 1790.
¶8This is an action by a minor who has become of age against one who admittingly was his tutor and who occupied, therefore, a fiduciary position as to him.
¶9The law expressly declares that every agreement which may take place between the tutor and such minor shall be null and void, unless the same was entered into after the rendition of a full account and *432delivery of the vouchers, the whole being made to appear by the receipt of the person to whom the account was rendered ten days previous to the agreement. R. C. C. 361. The jurisprudence is in accord with this wise provision. 2 La. 523; 15 An. 479; 16 An. 325; 12 An. 401; 13 An. 228; 25 An. 471, 529.
¶10It is therefore clear that such an account is a condition precedent for the validity of any agreement between them, in whatever form it may have been entered into, whether by settlement or otherwise. This is a matter of proof which is decisive of the validity of the agreement.
¶11It is not until after such an account has been rendered and adjusted that the fiduciary relations between tutor and pupil really cease.
¶12There is no evidence here that such an account was rendered previous to the alleged settlement, which is treated on its 'face as a “ contract.”
¶13In cases presented for judicial determination in which minors have sued tutors for an account and attacked purchases of their property by administrators, and settlements made in error and while they (the minors) were in ignorance of their rights under undisclosed and concealed facts, and in which the plea of tender had been set up, as a condition precedent, it has been held that it was not to be demanded. Tutorship of Hacket, 4 R. 290; Wood vs. Nichols, 33 An. 744; Heirs of Burney vs. Ludeling, 41 An. 632.
¶14All that equity requires in such cases is to permit the defendant to claim the amount in reconvention.
¶15Under the circumstances of this case, the plaintiff should not have ■been held to a tender, as a condition precedent to action.
¶16It is therefore ordered and decreed that the judgment of the lower court be reversed and avoided and that the plea of tender be overruled.
¶17It is besides ordered that the case be remanded for further proceedings according |to law; the defendant and appellee to pay the costs of appeal as well as those of the lower court, incurred subsequent to the filing of the supplemental petition.