This is a suit brought by the administratix of the succession of Widow Elizabeth Curry to recover of defendant the difference between the price brought by a certain piece of property when first sold at public auction to defendant ($12,300) and when sold "a la folle enchere" ($9,250), after defendant failed to comply with her bid.
I. Petitioner alleges: That the adjudication to defendant was made on June 12, 1924, the terms of sale being: "Purchaser to pay cash. * * * Ten per cent. deposit required at moment of adjudication." That, notwithstanding repeated demands, the 10 per *Page 338 cent. deposit was not made; defendant stating that she could not and would not comply with her bid. That the sale "a la folle enchere" was made on July 10, 1924, after advertising three times in the ten days preceding. That defendant was present at said sale, acquiesced therein, and approved thereof.
II. In the court below the defendant filed exceptions to the jurisdiction of that court and to the capacity of plaintiff to bring this suit. These exceptions are without merit and are not insisted upon here.
She also filed an exception of no cause of action, which she bases upon two grounds, viz.: (1) That she was not "put in default" by tender of a formal deed of sale; and (2) that in sales "a la folle enchere" the property, when consisting of an immovable, must again be advertised once a week for 30 days, said advertising to begin only 10 days after the first sale.
The trial judge maintained the exceptions, and plaintiff appeals.
III. Articles 2609, 2610, and 2611, of the Revised Civil Code of 1870, read as follows:
"Art. 2609. If the adjudication be made on condition that the price shall be paid in cash, the auctioneer may require the price immediately, before delivering possession of the thing sold.
"Art. 2610. If the object adjudged is an immovable for which the law requires that the act of sale shall be passed in writing, the purchaser may retain the price, and the seller the possession of the thing, until the act be passed.
"This act ought to be passed within twenty-four hours after the adjudication, if one of the parties require it; he who occasions a further delay is responsible to the other in damages.
"Art. 2611. In all cases of sale by auction, whether of movables or immovables, if the person to whom adjudication is made does not pay the price at the time required, agreeably to the two preceeding articles, the seller at the end of ten days, and after the customary notices, may again expose to public sale the thing *Page 339 sold, as if the first adjudication had never been made; and if at the second crying, the thing is adjudged for a smaller price than that which had been offered by the person to whom the first adjudication was made, the latter remains a debtor to the vendor, for the deficiency and for all the expenses incurred subsequent to the first sale. But if a higher price is offered for the thing than that for which it was first adjudged, the first purchaser has no claim for the excess."
IV. The general law provides that in all judicial sales the property to be sold shall be advertised 10 days if it consists of movables only, and 30 days if it consist of an immovable.
V. It is well settled that where a party refuses, and does not merely fail or neglect, to comply with his obligation, the other party need not formally put him in default. No one is required to do a vain and useless thing. N.O. Nashville R.R. Co. v. Ganalh,18 La. 510, 513; Abels v. Glover, 15 La. Ann. 247; State v. Police Jury, 120 La. 163, 45 So. 47, 14 L.R.A. (N.S.) 794, 124 Am. St. Rep. 430; Reinach v. Jung, 122 La. 610, 48 So. 124; Robelot v. Gentilly Terrace Co., 10 Orleans App. 237. Hence:
"An adjudicatee who absolutely declines to take the property cannot afterwards urge want of formal tender; his refusal was a waiver and the vendor was under no legal obligation to do a vain thing." Lindner v. Morgan, 2 Orleans App. 259.
VI. Article 2609, R.C.C. above quoted in full, provides that, if the adjudication be made for cash, the auctioneer may require the price immediately before delivering possession.
Article 2610, R.C.C., provides that, if the thing sold be an immovable, the written act of sale ought to be passed within 24 hours if either party require it.
How then can it be argued that under article 2611, R.C.C., the adjudicatee, even though the terms be cash, still has ten days *Page 340 to pay, during which the seller can take no steps towards a sale a la folle enchere, when the language of article 2611, R.C.C., is:
"If the person to whom the adjudication is made, does not pay the price at the time required, agreeably tothe two preceding articles, the seller at the end of ten days, and after the customary notices, may again expose to public sale the thing sold," etc.
This meaning seems clear enough; and this court has twice said what that meaning was. In Stewart v. Paulding, 7 La. 506, this court held that the jury had been correctly charged, "that the second sale need not be advertised during more than 10 days." In Duncan v. Armant, 3 La. Ann. 84, it was argued again that the sale should have been advertised during 30 days, beginning withinten days after the first adjudication. The court said:
"This term of 10 days, fixed by the Code, refers exclusively to the duration of the advertisement, and not to the period at which it is to commence." (Italics ours.)
VII. It will therefore be seen that a sale "a la folle enchere" is not governed, as to advertisements, by the general law, but by the special provisions of the Code on that subject. And, if we turn back to the chapter of the Code on Sales by Auction (R.C.C. 2601 to 2617), we will see the reason why. For that chapter deals of voluntary as well as forced (i.e. judicial) sales by auction; and article 2611, R.C.C., now under consideration, applies "in all cases of sale by auction"; that is to say to voluntary as well as to forced (i.e. judicial) sales.
VIII. It is said that this court has held otherwise in three later cases, viz. Guillotte v. Jennings, 4 La. Ann. 242; Labauve v. McCabe, 34 La. Ann. 183; and Weil v. Schwartz, 49 La. Ann. 583, 21 So. 859.
But we do not find it so. All three cases hold that a sale a la folle enchere is a harsh *Page 341 remedy, which cannot be extended, and must be used in strict accordance with the provisions of law. In Guillotte v. Jennings it was held that the terms of sale must be the same at both offerings. In Labauve v. McCabe it was held that the property offered at the second sale must be identically the same as that offered the first time, without change or variance whatsoever. In Weil v. Schwartz it was held that the procedure was notapplicable to sheriffs' sales. These cases all rest upon abundant authority; but none of them touches the question now under consideration, and which we think was correctly decided in Stewart v. Paulding and Duncan v. Armant, supra.
IX. We conclude that the exceptions herein filed were not well taken, and should not have been sustained.
Decree. The judgment appealed from is therefore reversed, and the exceptions herein filed by the defendant are overruled, and the case is now remanded to be proceeded with according to law; defendant-appellee to pay the costs of this appeal, and all other costs to await the final outcome.