delivered the opinion of the court.
The facts of this case are, that Sterling Q. Bray, by his testamentary dispositions, divided his estate in equal portions between Emeline Bray and J. Asher Bray, but appointed no executor. Both the legatees applied for the dative executor-ship, in opposition to each other, and the Court of Probates appointed them joint executors. The estate consisted principally of lands and slaves. On the 21st February, 1838, the executor and executrix united in a petition to the Court of Probates, in which they represent their joint interest in the estate, their joint executorship, and the necessity of a sale of the estate, for the double purpose of providing for the payment of debts and to cause a partition between themselves. They pray the court to order a sale of the immoveable property at auction, upon a credit of one, two and three years, the purchasers to give their notes with two approved endorsers, payable in the Bank of Louisiana, with interest at ten per cent., from due if not punctually paid, with special mortgage, &c.; and of the moveables, on a credit of one year. The court on the same day entered the judgment as prayed for, and on the 30th March, following, the parish judge proceeds to carry the order into effect, by exposing the property for sale according to the conditions and on the terms mentioned in the judgment. The tract of land, which alone forms the object of the present controversy, was adjudicated to J. Asher Bray, one of the executors and legatees, for thirty-six thousand eight hundred dollars. It is described as follows; “ a tract of land situated in this parish, and containingabout eight, hundred arpents, tobe taken from the upper part of the tract on which the deceased last resided, and being part of the cotton plantation cultivated by him in his lifetime, together with the improvements thereon and *355appurtenances thereto belonging, were offered and adjudicated to John A. Bray, he being the last and highest bidder, for the price and sum of forty-six dollars per arpent.”
No steps appear to have been taken to compel the defendant and appellant to comply with the terms of the sale until the 28th of February, 1839, when Emeline Bray presented her petition to the Court of Probates, in which she sets forth the above facts, and further represents that J. A. Bray had not complied with the terms of the sale, that in some instances he had not even given his note for the purchases made by him, and in no case, as required by the sale, with two good endorsers. She, therefore, prays that the whole property may be again offered for sale at the risk of the said defaulting purchaser, but oh a credit of one and two years, instead of one, two and three years, as was at first ordered, one year having already elapsed.
On the 12th March, 1839, it appears that an exparte order was entered as follows: “ It is ordered, &c., that J. A. Bray, do come forward and comply with the conditions of the probate sale of the succession of S. G. Bray, made on the 30th March, 1838, within ten days after the service of this order.” On the 19th of the same month, a copy of the order was served on the appellant, and on the same day the citation, issued on the above petition, was also served.
J. A. Bray, in his answer, admits that he purchased considerable property at the sale of his brother’s estate, for all of which he is ready to give or has given his notes according to the terms of the sale, except the tract of land. He alleges that he is not bound to give his notes for the purchase of the land, because the same was sold per arpent, and no survey has been made to ascertain the number of acres. The improved land was estimated ata different price from the unimproved land, and the quantity of each has not been ascertained by a survey. He further answers that he is an heir and executor of his brother, and is not bound to comply with the terms of the sale until a final partition be made between .him and the other instituted heir, each being entitled to one half. He further answers that the improvements on five *356hundred acres of laud that he purchased, were inventoried as community property, whereas only one hundred acres were improved during the community ; that the improvements were estimated at sixty dollars an acre, and that he would be greatly injured if compelled to give his notes before it is ascertained what quantity of land was in the tract, and what quantity was cleared during the community ; that as soon as this be ascertained, he will be ready to comply with the terms of the sale. He prays that the suit may be dismissed, and that he may not be compelled to give his notes until a partition and survey shall have been made.
The judgment rendered by the Court of Probates was, that the tract of land purchased by the defendant, should be again exposed to public sale, as if the first adjudication had never been made, on the same terms and conditions on which it was previously offered, and if at the second crying it should sell for a smaller sum than that at which it was previously adjudicated to the defendant, then the said J. A. Bray should remain a debtor, for the deficiency, to the said estate, and for all expenses incurred since the first sale, and if it should sell for more, then the defendant should have no claim for the excess. The reason given for this judgment was, that the defendant had refused to comply with the terms and conditions of the first sale. From this judgment the defendant prosecutes the present appeal.
The parties were joint owners of the property, under the will of S. G-. Bray, and although joint executors also, they did not and could not act in that capacity in any contest between themselves in relation to the property. It was only in relation to creditors or other legatees that they could act as executors. In the first proceeding which was had to provoke a sale of the property in the Court of Probates, they alone were parties, made no opposition, and their quality of co-executors may be laid entirely out of view. The judgment first rendered, therefore, amounted to little more than an agreement between themselves to sell the property at public auction, for the purpose of raising money to pay off debts, and of coming to a partition ; neither party demands tlie *357nullity of that sale, and, therefore, no inquiry can be made into the capacity of the purchaser; on the contrary, the plaintiff first endeavored to compel the defendant to complete it by giving his notes with endorsers, and now seeks to make it the basis of a sale U la folie enchire, and the defendant, not contesting the validity of the sale by the pleadings, excuses himself from giving notes, on the ground that, he as a co-proprietor, cannot be compelled to pay until a final partition; and also that the land was sold by measure, and that it has not yet been surveyed.
Co-proprietors of a succession of full age and capable of contracting, may consent to a sale at public auction and although the proceeds may be applied to the pay mentof debts, yet, if the creditors do not interfere, such a sale may be considered in the nature of a partition 0f acourt. Probatesiswithout jurisdiction, in a contest be-proprietors 'of i^'g^'partition' ?nd where one piamtiff^tofoSe oertal^prVerty purchased by the other, at the probate sale of the 3“]t)1t his’risk andcosts. A party may sue for uniiquiforthenon-comcoXa^of^ale' and it is clear in such a case the Court of Probates would be without jurisdiction. It is the same, if the party sues to compel a resale at the risk of the purchaser, altho’ the contract of sale arose under a-proceeding nominally in ,the probate court.*357The sale at public auction, in this case, was evidence of a contract between the parties. It rests essentially upon the consent of these parties, and although the proceeds raised may have been destined to pay the debts, yet, if the creditors did not interfere, it is not. very obvious why they majr not have proceeded validly to a sale in the nature of a partition without the aid of any court; they being of age and capable of contracting.
Looking at this transaction, thus stripped of its external forms and regarding the contending parties merely as co-proprietors of the property in contest, the question occurs, had the Court of Probates jurisdiction of this suit ratione materia. It is well settled that the proceeding U la folie ench'ére, is one of the cumulative remedies which the law gives to the vendor for a violation of the contract of sale. He may either prosecute in this manner by a resale at. the risk of the purchaser, or he may seek to compel a specific performance, or sue for damages by the ordinary action. 14 Louisiana Reports, 586. r
It is perfectly clear that if the plaintiff had sued for unliquidated damages for a non-compliance with the contract, the Court of Probates would have been without jurisdiction. If she had first proceeded to the sale h la folie ench'ere, which she clearly might have done (if this was a proper case for such a proceeding) without any previous judicial proceeding, as was done in the case above referred to, and had sued for the difference between the two adjudications as liquidated damages, it is equally obvious that although the contract arose under *358a proceeding nominally in the Court of Probates, yet that court would have been without jurisdiction. How is the case varied when that court is called upon, in the first instance, to decide that this isa proper case for a resale at the risk of the defendant? It is admitted she could not sue for the difference in that court, and if the defendant were sued for it in a court of ordinary jurisdiction, after the Court of Probates had condemned him to submit to the resale at his risk, can it be doubted that such judgment would form the authority of the thing adjudged, except as to the proceedings which took place afterwards in carrying the judgment into effect. He could no longer contest the question thus settled contradictorily with himself, and would be without defence in a suit, subsequently, for the difference of the two sales. We, therefore, conclude that the Court of Probates was without jurisdiction.
The judgment is, therefore, annulled and reversed, and it is further ordered that the suit be dismissed, and that the plaintiff pays costs in both courts.