Dowling vs. Gally.

He alleges in his petition that a part of the mortgage debt had been extinguished by prescription; that Gally and Villiers were agricultural partners; that Gally was a factor and commission merchant, and as such is accountable to the succession for one half of the proceeds of sugar and molasses sold in 1874, 1875, 1876, aggregating $54,647 76, subject to deductions for advances and commissions; and that this accountability entitled the curator to set up a reconventional demand; that he was not able to arrest the sale by injunction; but he solemnly protested against it; that as curator he is entitled to the price of the adjudication, $10,500, to be accounted for in due course of administration; that Gally is not entitled, or if entitled not by privilege and preference over other creditors; and that the proceeds of sale are in the hands of the sheriff, retained by order of court on the intervention and third opposition of Blanc, in the suit of Gally, by executory process, the proceedings in which he makes part of his petition. He prays that similar order be repeated in this case; and that "he recover judgment to the effect that the order, fiat, decree, and judgment in the executory suit No. 1504 be annulled, avoided, and rescinded."

This petition seems to have been filed on the twenty-eighth of February, 1877; at any rate, the judge's order to the sheriff to retain the funds in his hands subject to the further order of the court, was granted on that day.

On the fourth of June, Gally excepted on the grounds:

First-That Thorn, the adjudicatee at the sheriff's sale, is a neces

sary party to a proceeding to annul the sale.

Second-That plaintiff has no cause of action; that he can not attack the proceedings which eventuated in the sale, and at the same time claim the proceeds of that sale.

The district judge maintained the exception, and by judgment of sixth June dismissed the suit. Plaintiff moved for a new trial, which was refused on the fifteenth June, and he took this appeal.

We do not find in the petition any special prayer for the proceeds of the sale; but the curator distinctly sets out and claims the right to receive and administer the fund; and his prayer for general relief would cover that claim. If he did not intend to claim the money, and to have it paid to him, he had no interest in it, and no right to interfere with the disposal of it. In no event was there any occasion for his prayer for an order requiring the sheriff to retain a fund which he did not claim; and the sheriff was actually retaining the money at that time, under the order of the court, at the instance of Blanc, who did claim it.

When the exception was taken, or at latest when it came up for trial, the curator should have declared that he did not claim the proceeds in that suit, and that he limited his demand to the annulling and

Dowling vs. Gally.

rescinding of the order of seizure and sale. On the seventh of June, the day after the judgment of the court dismissing his suit on the exceptions, he moved for a new trial; but he wholly failed to set up as a ground that the court had erred in construing his petition as a suit to annul the sale and at the same time to recover the proceeds. He simply alleged that "the judgment of this honorable court is contrary to law and evidence," without specification.

On the eighth of June, the day after this motion for a new trial was made, the curator took the rule in the suit by executory process, which we have just disposed of, in which he claimed the proceeds of sale in the hands of the sheriff. As he had not before taken any steps to connect himself in any way with that proceeding, we think this subsequent proceeding was a necessary abandonment of the demand for the annulling of the order of seizure and sale. The judge had dismissed the suit in nullity; and it pended simply on the motion for a new trial. The demand for the proceeds of the sale was wholly inconsistent with the demand in nullity; and as this inconsistent demand was set up two days after the judgment dismissing the suit in nullity, the only reasonable interpretation that can be put upon it is, that it expresses the final choice and election of the curator to claim the proceeds under his asserted legal right as curator and representative of the succession.

It seems too clear for question, that the adjudicatee at the sheriff's sale was a necessary party to the proceeding to annul the sale; and it is equally clear that the demand of nullity, and the claiming of the proceeds are wholly inconsistent, and can not be maintained, as we had occasion to decide in Boubede vs. Aymes, 29 An. 274, as our predeces sors decided in 3 An. 454; 22 An. 135; 23 An. 245. If the petition in this case was really limited to the demand in nullity, that demand was completely antagonized, in the same court, in a judicial proceeding, in reference to the same subject matter, by the rule of eighth June; and the court would have done a vain thing in granting a new trial in the suit in nullity, which would necessarily have been dismissed on exception setting out the subsequent inconsistent demand for the proceeds.

Where the creditor proceeds via executiva, if the debtor have no other defense or objection than the want of sufficient authentic evidence the remedy is by appeal. If other causes exist, constituting grounds of defense which an appeal from the order of seizure and sale would not reach, the debtor must resort either to an ordinary injunction, and give bond and security; or to opposition and injunction without security, in the cases provided in the Code of Practice, articles 738, 739. One of the causes for which injunction without security may be granted is the extinction of the mortgage debt by novation, or in some other legal manner; another is that the debtor has a liquidated account to plead in compensation; and another is that the debt is barred by prescription.

Dowling vs. Gally.

No defect in the evidence on which the order was granted has been suggested; and the curator had no other remedy than either by ordinary injunction for causes not specified in article 739 of the Code of Practice, or by opposition and injunction as provided in articles 738, 739, for any of the causes specified in article 739. If he had any serious defense, either because the debt or any part of it was prescribed, or because the whole or any part of it was extinguished by compensation, or in some other legal manner, as by payment for example, it was his duty to have set up these defenses, and to have arrested the sale by injunction, which would have been granted without security, and would have been tried summarily. If he had other good causes of objection and defense, which would authorize an injunction against a judgment or the execution of a judgment rendered via ordinaria, it was equally his duty to have set them up, and to have arrested the sale by injunction, which would have been granted on proper bond. Surely there was ample time between the granting of the order of seizure and sale, on the sixteenth of December, and the actual sale, seventeenth February, for the curator to have ascertained whether there existed any just causes of defense, and to have set them up in the appropriate form. The protest of the curator at the sale was more than useless, since it could have had no other effect than to deter bidders, and thus prevent competition, to the prejudice of the succession.

A casual glance at the notes and mortgage shows that interest had been paid, and the payments extended, so that, apparently, not one of them was presented, at the time the proceeding via executiva commenced. This is wholly immaterial; but it is agreeable to us to feel assured that no wrong will be done to the curator or to the succession by the decree which we are about to render.

A judgment is not null, nor can it be avoided or annulled, simply because the debtor may have had good defenses, which he had ample opportunity to urge, and which he has failed to set up. The most careful perusal of the petition in this case has failed to disclose any cause of action, or right in the curator to demand the annulling and rescinding of the order of seizure and sale; and if all the allegations of the petition were true, they would simply constitute defenses, which ought to have been set up, which there was ample time and opportunity for the curator to have set up, either by opposition and injunction under articles 738, 739 of the Code of Practice, or by ordinary injunction, as the nature of the defense might have required.

Under the pleadings in this case the dismissing of the suit was inevitable, without regard to the truth and reality of the alleged causes of complaint; and the curator has no one to blame but himself if he has failed to make good defenses which might have been available.

The judgmeat appealed from is therefore affirmed with costs.

Smith vs. Kinney.

No. 6518.

AMELIA SMITH VS. T. J. KINNEY.

A power of attorney authorizing an agent to sell real estate need not be by authentie act. It is only necessary that it be in writing, and properly attested.

If the purchaser of property at a succession sale wrongfully refuses to comply with the terms of the sale, the administrator of the succession may, after putting the purchaser in default by the tender of an act of sale, cause a second sale at the expense of the purchaser; and the purchaser will be liable for the costs of this second sale, and any loss to the succession caused by the property's selling for a smaller price at the second sale.

A

PPEAL from the Second District Court, parish of Orleans. Tissot, J.

Braughn, Buck & Dinkelspiel for plaintiff and appellee.

McGloin & Nixon for defendant and appellant.

The opinion of the court was delivered by

MANNING, C. J. At a succession sale of Bridget Gannon's property an improved lot in this City was adjudicated to the plaintiff on her bid of $2225. The terms of sale were one third cash, and the residue on a credit of one and two years, and the adjudicatee made the cash payment to Hodgson, the auctioneer, on the spot. She afterwards refused to comply further with the terms, and the defendant Kinney, who is the executor of the deceased, provoked a sale à la folle enchère, at which eighteen hundred dollars only was bid, at which price the property was adjudicated to the second purchaser.

The plaintiff then instituted this suit, alleging that she purchased in good faith, and with the intention to comply fully with the terms of sale, but she discovered and was advised that the title of the deceased to the property was defective, and the proceedings in her succession under which the sale took place were invalid, and insufficient to convey a title to the whole property. She alleges that she gave notice to the defendant of the specific defects complained of, and demanded the return of the sum she had paid, and notified the auctioneer not to pay it over to the defendant, and she judicially sequestrated it in his hands. She avers that the defendant, by his own act in provoking the second sale, has put out of his power to make her a valid title, and she prays that the adjudication to her be annulled and rescinded, and the auctioneer be ordered to return the sum deposited with him, but if the court should determine that the adjudication to her conveyed a valid title, she prays that the executor be ordered to complete it within a reasonable time, or in default, that she be released from all obligation, and the cash payment be returned to her.

The defendant denies that either the title of the deceased to the property, or that tendered by her executor to the plaintiff, is defective

Smith vs. Kinney.

or invalid-admits the sale à la folle enchère-and avers that if the plaintiff can recover any sum in this action, it is only the excess of her cash payment over the loss sustained by the succession in the second sale.

The alleged defects are-1. that the property belonged to the community of acquets between the deceased and her husband, and the undivided interest of the latter, or of his heirs, if he be dead, could not be divested by a sale under the mortuary proceedings of his wife's succession, 2. that the deed to Mrs. Gannon was executed by an agent or mandatory of Legros, her vendor, and that the power of attorney, under which the mandatory acted, was an act under private signature, and the adjudicatee can not be compelled to accept title to real estate unless the vendor's title is evidenced by an authentic act. The third ground of non-qualification by the executor has been abandoned.

The answer, responding to the first allegation of defect, avers that "the property was sold under a valid order of court to pay debts and liquidate the succession, and to pay the debts of and liquidate the community between the deceased and her husband, if any existed," and in the concluding sentences the "respondent further denies that said Gannon, husband of deceased, has or can have any claim to or upon said property, having long abandoned her, absented himself, and permitted her to acquire said property in her name, and to control and administer the same."

The insertion of these sentences in the answer occasions the only difficulty in the case, which otherwise is very clearly with the defendant.

Bridget Gannon, the testatrix, acquired the property in question from one Legros, who lived in Texas, under a power of attorney from him to his agent here, giving full authority to sell and convey title. The power was made with reference to this identical property, which is described in it, and it was attested by witnesses, acknowledged before the proper officer, and had passed through the various certificates of the clerk and judge of the court which were deemed necessary to verify it. The sale is by notarial act, and the procuration of the vendor is annexed to it, and is fully set forth in the body of the act besides. The vendee is described in the act as "Mrs. Bridget Cooney widow of the late Thomas Gannon." The date of the act is Dec. 2, 1873. She died in 1875. On March 8th. of that year, her will was presented for probate, and in the petition then filed, she is described as "Bridget Cooney, formerly wife of Thomas Gannon."

No evidence whatever was offered by either party to prove the important fact, whether the deceased was wife or widow at the time the property was acquired, and in the absence of such evidence, we must take the recital in the deed as conclusive of her status. The only