On Application for Rehearing.
Bermudez, O. J.The defendant complains that there is error in the judgment herein rendered in this:
That if it be true that the judgment binds Hernandez, made a party, it ought to show that fact expressly.
That the formalities for the transfer of the property, as required by law, have not been observed, so as to bind the minors, from whom it in part derived.
That the judgment allows seven per cent, on the portion of the price which was to have been paid cash, while it could allow the legal interest only, as there was no consent to pay more.
I.
The ruling in Flower’s case, 23 How. 132, has no bearing in the instant ease, and Hernandez is surely bound by the judgment against him, represented by a curator ad hoe, to the effect that his judgment against Durruty, the husband, does not affect the property of Mrs. Durruty, the wife.
The District Court, however, ought to have made a decree in its judgment affecting Hernandez, and, as it has not done so, the omission can be supplied here. Otherwise, in orderto ascertain what the effect of the judgment here is, it would be necessary to consult the. reasons which do not form part of the decree.
*362II.
We held that the formalities for the sale of the property of minors at private sale had been observed, and deemed that statement sufficient to determine the issue on that point.
In the case of Boesch vs. Association, decided this day, in which thé proceeding was a kindred one, we again hold, that a sale of property, of which minors are part owners, can take place without being preceded by a formal judgment, as is provided for in partition suits for a sale at public auction.
It is enough, where the co-proprietors agree, that the family meeting And the necessity or propriety of the sale advantageous to the minors, and that, with the concurrence of the tutor, the court homologate the deliberations and order the sale, for the price fixed by the family meeting.
in.
The District Court erred in compelling the defendant to pay seven per cent, interest on the cash instalment. In the absence of any written evidence of an agreement, the defendant can be made to pay legal interest only. R. C. O. 1940, 2924.
It is therefore ordered that our previous decree herein be amended iso as to read as follows:
•It is ordered and decreed that the judgment appealed from be amended by reducing the interest on the cash portion from seven to five per cent., and by declaring that the judgment of Leon Hernandez against Jean Honoré Durruty, for $18,750, on the 1st of June, 1886, in the United States Court, does not affect the property described in the petition and forming the object of this suit; and that thus amended, the judgment appealed from be affirmed at appellee’s cost; and it is further ordered that our previous decree thus modified remain undisturbed.