Landreaux v. Bel

The opinion of the court, Mathews, J. absent, was delivered by

Maetin, J.

The defendant is appellant from a judgment by which he is ordered to comply with the conditions of a sale, in which a house and lot was adjudicated to him as the last bidder, by giving his notes, according to the terms of the sale.

The case has, by consent, been submitted to us, upon the judgment appealed from and the articles of the Code cited therein, and the following facts.

I. The premises are a part of a larger lot and several buildings, appraised in globo, in the inventory, at thirty thousand dollars.

II. The whole was afterwards divided into three lots, by the deliberation of a family meeting, which was duly homo-logated.

The329th art¡-anaCode 'rehjtJs tmy Saa'eby'ths nórt “property' extendedlo ai minora may bo

III. In pursuance thereto, two of these lots were sold, one for ten thousand six hundred dollars, to the defendant, and another for seven thousand dollars; the third was not offered for sale, but withdrawn; and the widow is disposed to take it for fourteen thousand dollars; these three sums exceed, by one thousand six hundred dollars, the price at which the whole property was appraised.

The counsel for the appellant has contended, his client was willing to comply with the terms of the sale, if he were secured hy a bond of indemnity against the danger which he apprehends from apparent irregularities in the inventory of appraisement, and in the sale, viz: — the appraisers were appointed and sworn by a notary public appointed by the Court of Probates; nothing shows the appraised value of the property purchased by the defendant.

The Court of Probates was of opinion that the appraisers were properly appointed and sworn by the notary; the article 1098 having an express provision, giving authority to appoint and swear appraisers to the judge or notary, who makes the inventory.

The appellee has contended, that the power given to notaries by this article, is confined to cases in which the judge is not expressly required to make the appointment himself, and the present one is said to be one of those, as minors are. interested in the property inventoried. Id. 329.

** **as appeared to us, there is nothing in this objection; ^he article 329 relates only to inventory made by tutor of. his minor’s property; and we have no authority to extend it. to all cases in which minors may be interested, The property was duly appraised, and with the view of facilitating its bringing the appraised value, the family meeting directed it to be divided into three lots, and sold accordingly.

The validity of the sale of the first and second of the three lots was in suspense, till the third brought a sum, which, added to the price'at which the other two had been adjudicated, formed an aggregate sum equal to or exceeding the value fixed on the whole property by the appraisers.

Where a traet of land and several buildings belonging to a succession, were in the inventory appraised in globo for a certain sum, and a division of the property was made into three parts, agreeably to the request of the widow, and, the deliberation of a family meeting for the mi nor children of the deceased;— and two of those parts were adjudicated at public auction, held, the purchaser could not be compelled to execute the contract, until the other part should be sold, unless a bond of indemnity were given to him. Soulé, for appellant. Mazureau, for appellee.

The lot which remains unsold, we are informed, the widow who is the petitioner in the present case, is disposed to take at a price, which added to that at which the other two were adjudicated, will cause the aggregate produce of the sales of these three lots to exceed the sum of thirty thousand dollars, at which the whole property was appraised. This, however, has not yet been effected; the lot is still unsold, and has not yet been adjudicated to the widow. Till this be done, and legally done, the defendant is not perfectly secure in his title, and, it appears to us, he did no injury to the estate, in requiring, before he gave his notes, to demand security against any accident.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, and the plaintiff’s petition dismissed, she paying costs in both courts.