delivered the opinion of the court.
This is a petitory action. Both parties claim the premises under one Daniel Davis, who acquired the lots from the original grantee. The plaintiff’s title is derived from the son and heir of the deceased. The defendant’s from a judgement obtained against a curator appointed to his estate, and execution and sale by the sheriff in pursuance of that judgement.
On the trial, two bills of exception were taken by the defendant, to the rejection by the court of testimony offered by him, to prove the loss of the execution under which the sheriff had made the sale already alluded to. We do not find it necessary to express an opinion on these exceptions, because, were we satisfied the court erred, we could not remand the cause to admit testimony which, if now before us, would not enable the defendant to sustain the right set up by him to the property in dispute.
The execution, no matter how correct and formal, could not cure the defect which the judgement presents. The curator was appointed to the vacant estate of Davis, the 26th of May, 1827, and on the same day, or within one or two days after, without inventory, appraisement, or the pursuance of any one formality which the law required in the discharge of his lle confessed judgement in favor of the plaintiff, in the following words: “By consent of parties, it is ordered and decreed by the court, that the plaintiff recover of the defen¿la-iit the sum of one thousand three hundred and forty dollars Pei^ion mentioned; and that the plaintiff agrees to take the two lots, numbered 1 and 2, in square number *49910, m the town of Alexandria, with the houses and improvements, are to be taken in execution, by the sheriii of parish of Rapides, and sold according to law, to satisfy the said judgement and costs.”
The plea of prescription cannot avail a purchaser claiming property under a defective title, derived from an irregular sale of minors’ property,when ten years have not elapsed at the inception of the suit, since the minor came of age.The plaintiff was a minor at the time this sale took place, and his property could not be alienated in the mode it was attempted here. The curator had no authority to discharge a debt due by the succession, in any other manner than by a a sale under the authority of the Court of Probates. Had he confined himself to the mere acknowledgement of a debt, and suffered execution to run in the ordinary way, a question might be raised, whether the act was void or voidable. But the situation of a particular piece of property, and the agreement the creditor should have it in discharge of his claim, was entirely out of the scope of the powers conferred on the curator, and could vest no right in the creditor purchasing it at the public sale.
The plea of prescription cannot avail the defendant; for ten years had not elapsed at the inception of the suit, from the time the minor heir came to the age of majority.
It is,, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs.