On the 3d of February, 1853, William M. Dameron was appointed administrator of the succession of the late James 3. Golemcln. On the 15 th of 'March following, Malachi Bradford filed a petition in the same court, alleging that he was the appointed guardian of his grand-daughter, Angelina Coleman, by the State of Mississippi, his domicil, where she was supported by him ; that she had no other property than that which was under tbeadministration of the court, and being unproductive, it was to her interest that the same should be sold and the proceeds thereof invested; and that he had in vain endeavored to induce some of her friends and relations to become her tutor. He concludes by praying that a special tutor and under-tutor be appointed to her, and that a family meeting be convoked to deliberate upon the propriety of the sale of the property and investment of the proceeds thereof.
On the same day, an order was granted appointing William H. Dameron as special tutor, and Thomas A. McDaunold, as under-tutor, without requiring of the former any bond and security, &c. Upon the advice of a family meeting, convened and homologated as prayed for, the property, described as a certain lot of ground in the square bounded by Constance, Magazine, Richard and Felicity streets, in the First District of New Orleans, was offered for sale at auction, and adjudicated to Alexander Gaffney, for the price of $1400, payable one-fourth cash and the residue at one, two and three years’ credit.
Upon the refusal of Gaffney to comply with the terms of the sale, a rule was taken upon him by Dameron, as curator and special tutor, to show cause why he should not do so. In answer to tho rulo, Gaffney urged several reasons for his refusal, among others: 1st. “That there was no legal order for the sale; *110the said order being granted on the application of a special tutor, an officer who could not be appointed to the minor for the purpose of selling the real estate belonging to the minor, and the family meeting recommending the sale was prematurely and illegally convoked. 2d. That the effects of the estate have never been delivered to the tutor, nor has he been put in possession of the same,” &c.
Gaffney is appellant from a judgment making the rule absolute.
We think the judge a quo erred. There are four sorts of tutorships known to our laws: tutorship by nature, tutorship bj' will, tutorship by the effect of the law, and tutorship by the appointment of the judge. (C. C. 264.) The law requires, in the cases prescribed, that “ the judge shall appoint a tutor to the minor, by and with the advice of the meeting of the family.” (C. C.288.) In certain cases, the judge is authorized, with the advice of a family meeting, to appoint a discreet and responsible person as tutor to a minor, who shall in all respects comply with the existing laws in relation to tutors, except that of giving security for his administration.' (Session Acts of 1834, p. 113, § 4.) “ When the minor is without a tutor, any person who has a claim against him may apply to the competent judge to request that a tutor ad hoe be appointed to him, which tutor shall not be bound to give any security, but shall take an oath before the court who has appointed him, to defend the interest of the minor to the best of his knowledge.” C. C. 295.
In cases of partition, the Code (Article 3291) provides: “ If there are several minors who have opposite interests in the partition, and have the same tutor and curator, there shall be appointed to each of them a special tutor, whose functions shall cease as soon as the partition is terminated.”
We are not aware of any other cases in which a tutor ad hoe or special tutor may be appointed to a minor. We think it is clear that the appointment in the present case docs not fall within either of these exceptions. Assuming that the property in question belonged to the minor, as alleged, it is evident that the adjudication of it under those proceedings must be considered as a nullify. In the sale of minors’ properly, we consider it to be well settled that all the formalities of law must bo observed for the validity of such sale. The conveyance derives its force and validity from the law; hence, where the law is not followed, it is clear that the authority which stands in place of the owners’ consent is wanling. Applying this principle to the case at bar, it is manifest that the minor’s consent is wanting, inasmuch as she cannot be considered as legally represented by a ¡special tutor. Minors, when they become of age, can always avail themselves of nullities resulting from the omission of any of the formalities established by law in the sale of their property. 6 R., 471; 9 ibid., 78; 2 A., 648.
The cases on which the appellee relies, to the effect that a party is not permitted to look beyond the decree of-a competent court authorizing the sale of minors’ property, are, we think, clearly distinguishable from the present. The right of a purchaser of minors’ property at a judicial sale to inquire into the regularity of the proceedings, we think may be fairly conceded, and cannot be compelled to a compliance with the terms of the sale unless such proceedings are clothed with all the formalities of law requisite to vest in him a legal title.
It is therefore ordered and decreed that the judgment of the court below be reversed, that the rule herein taken against the appellant, Alexander Gaffney, be discharged, and that the appellee pay the costs of both courts.