On Rehearing.
PRO VO STY, J.Plaintiff, alleging his ownership of a one-sixth interest in a certain tract of land and a like interest in each of five other persons, prayed for a partition, and that to effect this partition the property be sold for cash. But he at the same time alleged that a certain Mrs. Naquin claimed a one-half interest in the property, and mortgage rights upon the other half interest, and he prayed that this lady be cited, and be adjudged to have no interest in the property and no mortgage, and that the -said sale be made “free from any claim whatever on her part.”
Mrs. Naquin answered, asserting her said claims, but asking that the property be sold for cash, and that her mortgage be transferred to the proceeds of the sale; and she and the other defendants then joined in a rule upon the plaintiff to show cause why the sale should not be made at once, and “the proceeds ordered to be held by the sheriff until the further orders of the court, and the claims of all the parties to the suit be referred to such proceeds, to be decided upon the trial of the issues which are contested in this cause.” In answer to this rule plaintiff contended that the sale should not take place before the alleged rights of Mrs. Naquin had been determined. The court rejected this contention, and rendered judgment making the rule absolute; and the matter now to be considered is an application of plaintiff for a mandamus to the trial judge directing him to grant an appeal from that judgment.
[2] It is said that all parties consented to the sale being ordered, and that therefore the judgment is one by consent; and, as such, unappealable. But, very far from consenting to the rule, the plaintiff opposed it; and so far as his petition is concerned the only sale it asked for was one “free from any claims whatever” on the part of Mrs. Naquin.
In the case of Reynolds v. Reynolds, 43 La. Ann. 1118, 10 South. 303, where, on the authority of Stokes v. Stokes, 6 Mart. (N. S.) 350, the court denied an appeal from a judg*205meat ordering a sale in a partition suit, the court added:
“If the case involved a controversy as to the fact of co-ownership, * * * possibly, under some certain circumstances, appeal might lie.”
And in Maguire v. Fluker, 112 La. 78, 86 South. 231, the court cited with approval Woolfolk v. Woolfolk, 30 La. Ann. 146, where the court had said that:
“The weight of authority as well as of reason is against the dictum of Stokes v. Stokes”
—meaning that a judgment in a partition suit does not differ from an ordinary judgment in point of appealability.
The appealability must depend upon whether the complainant has a pecuniary interest in having the judgment in question revised, either because of its having passed erroneously upon the issues tendered by the pleadings, or failed to pass upon them. In the present case the complaint is that the judgment has failed to pass upon an issue tendered by the pleadings; this issue being as to whether the property should be sold free from the claims of Mrs. Naquin, or subject to, or under the cloud of, these claims.
The judgment having failed to pass upon said issue, the question resolves itself into whether the plaintiff has a pecuniary interest in having said issue determined preliminarily to the sale.
Two very good reasons are assigned why he has:
One is that at an auction to effect a partition the question of ownership may exercise a very decided influence upon the bidding; for in the proportion in which a part owner is owner he may without outlay overbid a stranger to the property. If he is, for instance, half owner, his raising the bidding by $100 means $50 outlay to him; whereas, to a stranger to the property, a like addition would mean $100. Bringing the matter to the test of the present case, we find that plaintiff has heretofore, and is still, cultivating this tract of land (which, for all we know, may constitute one field with his adjoining plantation), so that he probably will want to buy the property at the auction. If the auction takes place after the claims of Mrs. Naquin shall have been eliminated by final judgment, he will know that one-sixth of his bid means no outlay to him; whereas, if the said claims have not yet been adjudicated upon, he will not know but that every dollar he bids means a full dollar.
Another good reason is that the proceeds of the sale will have to remain in the hands of the sheriff until the rights of Mrs. Naquin are adjudicated, which can hardly be less than two or three years, and may be four or five, during this time bringing no revenue; whereas, the property until sold Will bring revenue to its owners.
It is argued against this last reason that the plaintiff, being a co-owner, may, in case he becomes the purchaser, retain the price of the sale in his hands until the respective rights of the parties are adjudicated. But, conceding for the argument that a co-owner purchasing may thus retain the price, what if plaintiff does not become the purchaser. Is his share of the price to remain indefinitely tied up, yielding no, or a mere nominal, revenue.
The learned counsel for defendants say that the rehearing should be recalled, because it was not granted “on any point called to the attention of the court by brief or argument at the first hearing,” and at the same time they say that they are “entirely in the dark as to the point on which the rehearing was granted.” There is inconsistency here. As a matter of fact the rehearing was granted on the ground assigned in the foregoing opinion, which ground, as appears from the. opinion, was that presented by the pleadings.
It is therefore ordered that the writs of *207mandamus and prohibition be issued as prayed.
O’NIELL, J., dissents, adhering to the original opinion rendered herein.