Short answer. Yes. Article 928 makes the heir who must deliver a legacy liable for eviction where the thing was indeterminate and indicated only by its kind. If a third party's superior right takes from you the item delivered, the heir must answer for it — a generic legacy carries a warranty against eviction.
What the law says
The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind.
Civil Code, Article 928 — The Deliverer's Warranty. Read the full provision →
What Article 928 provides
Article 928 provides that the heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind. Eviction is the loss of a thing to someone with a better legal right to it. The article gives the legatee of a generic gift a warranty: if what the heir delivered is taken away by a third party's superior claim, the heir has not discharged the legacy and must make it good. The burden of getting the legatee a good title rests on the heir who owed the gift.
Why the 'only by its kind' distinction matters
The warranty is tied to the nature of the gift. A generic legacy — 'a horse', 'a car', 'ten sacks of rice' — is defined only by its kind, not as one specific thing. Because the heir chooses which particular item to hand over, he is taken to warrant that the one he chose is genuinely deliverable, free of another's claim. If it is not, and the legatee is evicted, the heir simply owes another of the same kind. Contrast a legacy of a specific, identified thing: there the testator gave that very item, and different rules apply, because the heir had no choice of what to deliver.
What the legatee can demand after eviction
Where a generic legacy is lost to eviction, the legatee is not left empty-handed and is not confined to suing the third party who took it. He looks to the heir, who must satisfy the legacy again — delivering another thing of the same kind, since that is what the will actually gave. The point of a warranty is that the legatee's entitlement survives the failure of the first delivery. The heir carries the risk that the item he selected turns out to belong, in part or whole, to someone else, and he bears the cost of putting that right.
What to check if you have been evicted
If a thing given to you by kind has been taken by a third party's claim, establish two things. First, that the legacy really was generic — indicated only by its kind — because that is the trigger for the warranty; a gift of a specific identified thing is on different footing. Second, that you were genuinely evicted by a superior right, not merely inconvenienced. With those in place, your claim is against the heir bound to deliver, for another thing of the same kind. Keep the will, the record of what was delivered, and the documents showing the third party's better title.