(dissenting, with whom concurred Lea, J.) It has been irrevocably determined that the sale to Dr. Puissan a la folie enehére, under Article 2589 of the Civil Code, at the risk of the defendant Howes, was a rightful procedure and vested a title in Dr. Puissan. See the case of the Succession of Georye Foulkes, ante p.
It matters not how much the court may have wavered and differed in coming to that conclusion, nor indeed would it matter so far as the determination of this cause is concerned, if the conclusions were erroneous; for res judicata pro veritute aeaipitur.
It was decided that Howes made a bid in the name of the minors under his tutelage without sufficient authority to bind them.
Tie refused to pay the price, was duly put in default, neglected to take any steps to procure relief by attempting to comply with the requisites of law, and the result has been a resale of the property at a sacrifice of $1815, “ If at the second crying, the thing is adjudicated for a smaller price than that which had been offered by the person to whom the first adjudication was made, the latter remains a debtor to the vendor for the deficiency and for all the expenses incurred subsequent to the first sale. But if a higher price is offered for the thing than that for which it was first adjudged, the first purchaser has no claim for the excess.” 0. 0. 2589.
“ The person who bids in the name of another without sufficient authority to bind him, is considered to have bought on his own account, and is answerable for all the consequences of the adjudication.” 0. 0. 2593.
Under these Articles the liability of the defendant appears to me to be an inevitable sequence of our former judgment.
I am unable to perceive any fatal discrepancy between the allegata and pro-bata, nor does it seem to have been noticed by counsel. The procos verba *451itself was annexed to the petition and specially referred to in it for greater certainty. The liability of Hoioes, is personal under Article 2598, for the very reason that he caused the adjudication to be made to him, as tutor without sufficient authority to bind the minors. By legal intendment the adjudication was made to him personally.
Nor do I perceive how an error of law, or a lack of bad faith on his part can release the defendant and oblige the succession of Foullces to lose this money. This is not an action in damages -for a tort, where malice must be proved, although even then ignorance of ’the law, however obscure and uncertain it may be, has not been held to constitute an excuse. The substance of this action is to recover the damages, liquidated by'the law itself, for the breach of a contract. By the act of Hoioes the succession of Foullces, and by consequence its creditors have lost $1,815 ; now should not this loss fall upon the man whose mistaken notions of law occasioned it, though he may have acted in the best of faith, rather than upon the innocent creditors of the injured succession, since we have already determined that the administratrix acted throughout in strict conformity to law ?
If we are at liberty to look into these equities in a proceeding of strict law, it should also be observed that Howes himself is proven to have caused the sacrifice, by insisting upon his own title at the re-sale, and menacing the bidders with a law-suit.
It has been said, that if we affirm the judgment, it may greatly injure the defendants, and possibly deprive the minors under his protection of a home. If so, it is an extremely hard case ; but rules of law are inflexible or they are worthless.
The rule that operates a hardship to-day, may work beneficially in' all time to come. Wo cannot make an exception where the law does not, without invading the legislative province. And it has ever been found that that system of law is best, which leaves the least to the discretion of the Judge.
The claim being ex contractu and not ex delicto, the prescription of one year is inapplicable. Bor these reasons, I think the judgment of the district court should be affirmed.
An application having been made for a rehearing, the following judgment was rendered: