On April 25, 1910, Mrs. Langworthy purchased lot 1 in square bounded by Freret, Robert, South Robertson, and *743Upperline streets, in this city. She paid $200 cash, and made her note for the balance of the purchase price in the sum of $1,450, payable in 5 years, with interest payable every six months, and stipulating that the failure to pay the interest promptly would cause the note to mature and become immediately exigible. She paid the interest falling due in October, 1910, April, 1911, and October, 1911, and then, for all that appears, failed to pay the interest falling due April 25, 1912; for, on April 30, 1912, executory process issued against her on the mortgage and vendor’s privilege securing the payment of the note. The notice of demand, or of order of seizure, required by law to be served upon her was given to the sheriff on April 30th. On the next day, May 1st, he made return that “after diligent search and inquiry” he had been unable to find her, or her domicile, or any one legally authorized to represent her, but had been “credibly informed that she was now residing in Memphis, Tenn.” Thereupon a curator ad hoe was appointed to represent her, and, contradictorily with this curator, the executory process proceedings were conducted, resulting in the sale of said lot at judicial sale to plaintiff’s author in title. Whether any one ever lived on said lot does not appear. Plaintiff having sold the lot to defendant, and defendant having refused to accept title, this suit was brought, in July, 1917, to compel acceptance.
Defendant’s objection to the title is that, for all that appears, Mrs. Langworthy may not have been served with the notice of demand, and that she might therefore bring suit on that ground for the nullity of said judicial sale.
Plaintiff answers that the said notice was served on the curator ad hoc, and that, this officer was properly appointed to represent Mrs. Langworthy, who was shown by the sheriff’s return to be absent from the state, and that, moreover, the prescription of 5 years would be a good defense to any suit she might bring.
The service was properly made on the curator ad hoc if the appointing of that officer was proper, and the appointing was proper if Mrs. Langworthy was absent from the state; but no evidence of her said absence has been produced in this suit, and none was produced in 'the executory process suit, unless the return of the sheriff can be taken to have been such.
[1] The law requires the sheriff to make a return of how he has served the notice of demand, and specially provides what shall be stated in the return in 'case the service is not in person but at domicile. No provision is made for what must be stated in case the person to be served cannot be found, nor his or her domicile. O. P. 200, 203, 204, 736. But evidently what in that case is necessary to be stated is that the sheriff has not made the service, and probably also the reason why he has not made it; this reason being that he was unable to find the person to be served or his or her domicile. Any statement the sheriff may make beyond the foregoing is not called for by the exigency of the occasion, and is therefore not made in the discharge of any official duty, or under the sanction of his official oath, and, as a consequence, is not official. In other words, as to the matters which the sheriff is required to cover in his report, his return is an official document, and is evidentiary as such; but as to all-matters he is not required to cover in his report, but which he gratuitously or officiously does include in the report, the return is not evidentiary. A sheriff’s return has not the same evidentiary force in our law as at common law. Marvel v. Mavourier, 14 La. Ann. 3, 74 Am. Dec. 424. But even at common law “if the officer includes in his return facts which he is not required to certify, the return will not be evidence of *745such facts.” 18 Ency. of PI. & Prac. 977. The statement made by the sheriff in his said return that he had made “diligent search and inquiry” may have been proper enough in justification of the officer; but it was not necessary, and is therefore not evidence. Had it been omitted the return would have been just as good, and, legally speaking, just as complete. And, moreover, we may note, in passing, that the search and inquiry, however diligent it may have been, was certainly not very protracted, since the notice was received one day and returned the next. And it is further noteworthy that the sheriff was not informed, by the petition nor by the notice, nor otherwise, for all that appears, of the last place of residence of Mrs. Lang-worthy in this large city. In the act of mortgage she is stated to be a resident of this city. The other statement contained in said return, that the sheriff was “credibly informed that Mrs. Langworthy was now residing in Memphis, Tenn.,” was manifestly purely officious, and therefore was merely an unsworn statement, made elsewhere than on the witness stand, and not evidence. Our conclusion is that the said return was not evidence of the absence of Mrs. Langworthy from the state, and that in the absence of proof of her having been absent the service upon the curator cannot be held to have been a service upon her.
[2] The rule is well settled that the party relying upon the regularity of the appointment of a curator ad hoc to an absent defendant must be prepared with evidence showing that the defendant was absent and not represented. Whitney Central Bank v. Alfred, 136 La. 230, 66 South. 855; State v. Judge, 16 La. Ann. 390.
The learned counsel for plaintiff would distinguish these cases because in them the defendant was shown not to have been absent at the time the curator was appointed. But that fact in no way affects the doctrine of the cases, which is that the burden of showing the fact of the absence of the defendant to whom a curator ad hoc was appointed rests upon • the party asserting the validity of the appointment.
[3] The learned counsel also invoke the presumption omnia rite acta, but presumption can be indulged in only in the absence of the facts themselves. Here, we have the facts. We know that the absence of Mrs. Langworthy from the state was not Sought to be shown otherwise than by the sheriff’s return. Not even by allegation in the petition. And, hence the question reduces itself to whether such a return is proof of such absence; and we find that it is not.
In the absence of notice of demand, a judicial sale, made in executory process proceedings, is admittedly invalid; but plain-* tiff’s learned counsel contend that such invalidity is cured by the 5 years’ prescription. And, in support of this, they cite the cases of Allan v. Couret, 24 La. Ann. 24, Drouet v. Rice, 2 Rob. 377, Oriol v. Moss, 38 La. Ann. 770, and Richardson v. McDonald, 139 La. 651, 71 South. 934.
The notice involved in the case of Allan v. Couret, was not the notice of demand or of order of seizure, but was the notice of seizure, which is a notice of an entirely .different character.
The ease of Drouet v. Bice did not involve the notice of demand, or any other notice.
In Oriol v. Moss, the court said:
“We are not to be understood as extending this doctrine [of prescription of 5 years] to entire absence of notice, but only to cases where there has been a waiver or the like, showing actual notice.”
In Richardson v. McDonald and same ease under title Bank of Webster v. McDonald, 137 La. 574, 68 South. 959, there was no question of whether the curator ad hoc had or not been properly appointed, or of whether the notice of demand had or not been duly *747served upon him; but the sole question in connection with the notice of demand was as to whether the notice should not have been addressed to J. E. Stevens, curator ad hoc of the defendant, McDonald, instead of simply, to “J. E. Stevens, Curator ad hoc;” i. e., without naming the defendant for whom J. E. Stevens was curator ad hoc. This evidently was a mere irregularity, if, indeed, it was one.
Plaintiff’s learned counsel cite cases to the effect that irregularities in judicial sales are cured by the said prescription. No doubt of that; but the absence of citation, or the absence of notice of demand, which stands in the place of citation, whereby the defendant is to be afforded an opportunity to be heard is not a mere irregularity; it is a nullity, and not prescriptible. Carrere v. Aucoin, 122 La. 258, 47 South. 598; Hart & Hebert v. Pike, 29 La. Ann. 262. See, especially, Killelea v. Barrett, 37 La. Ann. 870.
The judgment appealed from is set aside, and the suit of plaintiff is dismissed at his cost in both courts.