Same Case — On a Re-hearing.
Where the surviving husband by a second marriage, under an order of court in pursuance of a family meeting, sells the community property, which, by subsequent conveyances, gets into the hands of an innocent purchaser, the property thus sold will be freed from the mortgage in favor of the minor by the first marriage of the deceased, of which the husband was co-tutor, although the order of sale was illegally granted, and was subsequently annulled at the suit of the minor; the cause of nullity being relative merely.
*9THE judgment of the court was pronounced by
SniDEim, J.The question in this cause is, whether Fabre has a right of legal-mortgage upon a slave owned and possessed by the defendant.
The facts material to this inquiry are the following: The plaintiff’s mother married Sylvain Peyroux. This slave formed part of the community of acquets and gains which existed between Peyroux and his wife. She died, leaving children, issue of her marriage with Peyroux. He was confirmed by the Court of Probates of St. Bernard, the domicil of the plaintiff -and of Peyroux, and the place where her succession was opened, as natural tutor of those children, and was also, upon the advice of a family meeting, appointed dative tutor of the plaintiff, who was then a minor, and continued to live in that parish until the year 1843, when he went to France. He became of age sometime in 1843 or 1844. An inventory of the community property of Peyroux and wife was made, and, in 1841, Peyroux, as tutor of his children, and dative tutor of Fabre, presented a petition to the court of probates of said parish of St. Bernard, praying an order for a family meeting to deliberate on the propriety of selling their interest in the community property. The family meeting declared that, in their opinions, a partition in kind could not be made without great injury to the minors, and that-a partition, by sale at auction, would be advantageous to them, and they recommended that the share of the minors be sold on certain designated terms of credit. Peyroux then, in his capacity of tutor and dative tutor, presented the deliberations of the family meeting to the Court of Probates of St. Bernard, and represented in his petition, that it was for their interest that their property should be all sold, and he accordingly prayed for such order of sale as might be proper, in order that the sale might be effected according to the advice of the family meeting. Upon this petition the court made a decree, -ordering, not that the mere interest of. the minors be sold, but the entire property. The wox-ds of the decree ax-e: Let the delibex-ations of the family meeting be appi-oved and homologated, and let the property belonging to the community heretofore existing between the petitioner and Rose Aglae Canlerelle, his disceased wife, be sold. In pursuance of this decree, the entire community property, and not-the mere interest of the minors, was sold at public auction in 1841, by the same parish judge who made the decree, he acting in his capacity of auctioneer ex officio. The entire property of the slave in question was adjudicated, with other community property, to McCarthy. McCarthy afterwards sold the slave to Barrett; Barrett sold to Belery. ' The mortgage notes for the price given by Belery were discounted by the Bank of Louisiana. The bank subsequently caused the slave to be seized and sold under the mox'tgage, became itself the purchaser at sheriff’s sale, and then sold to Hepp, the defendant. Whatever fraud and collusion may have existed between Peyroux, Barrett, or other antecedent parties, the good faith of the bank and of Hepp is unquestioned.
Thus, it appears, that the same judgment which authorized the sale of the interest of Mrs. Peyroux’s succession in the community px-opex-ty, contemplated and authorized the simultaneous sale of Peyroux’s interest. The whole was ordered to be sold, and was sold undivided. That decree was made by a court which had jux-isdiction over the pex-son and estate of the minor Fabre, at the instance of the dative tutor of the minor. It is manifestly inconsistent with that decree, that the minor’s mortgage, supposing it had then attached on Peyroux’s share, should continue after the sale on any poi-tion of the community property. To .permit it so to continue, would be to pei’mit the deci-ee of the court to be a snare to the public.
*10Then the interest of Peyroux, as well as that of the succession of Mrs. Peyroux, having been sold in mass, in pursuance of a decree, which necessarily released the legal mortgage; and that decree having been rendered by a court clothed with jurisdiction over the person and rights of the minor, third persons holding in good faith, under that decree, are protected by it. Now the bank and the purchaser stand in that attitude ; and even if the original purchaser, McCarthy, and some of the other parties to the intermediate conveyances were colluded with Peyroux, and would, therefore, have been subject to an equity in favor of the minor, yet that equity being secret, could not affect either the bank or the defendant, who holds under the bank.
So as to the objections to the appointment of Peyroux, as dative tutor of the minor, on the ground that the minor children of Peyroux, whom he represented as their natural tutor, and Peyroux, himself, as debtor of the petitioner, had interests adverse to the plaintiff; as these were, at most, relative nullities, and the appointment was not absolutely void, third persons are not thereby affected.
This case seems properly to come under the doctrines enunciated in Lallanes' Heirs v. Moreau, 13 L. R. 436. Bach v. Abbott, 6th Ann. 809. Stockton v. Craddick, 4th Ann. 282. Pike v. Monget, 4th Ann. 227.
The above are the considerations which induced me to dissent from the opinion hitherto given by the majority of the court in this case
I think the judgment of the district court should be affirmed.
It is therefore now decreed, that the judgment heretofore rendered .in this cause by this court, on the 6th June, 1850, be set aside, and that the judgment of the district court be affirmed; the appellant to pay the costs of the appeal.
Eustis, C. J. and Preston, J., concurring.