dissenting. I am of opinion that the judgment in this case ought to be affirmed for the reasons assigned by the Judge a quo, except in relation *218to the questions as to the liablity of the party for the fruits of the property, on ■which I express no opinion.
C. Roselius and R. Hunt, for a re-hearing, argued : The court, in declaring the sale to the defendant valid, has substantially decided, 1st. That a sale of immovable property by a Sheriff, under an order and writ of seizure and sale, upon terms different from those contained in the order of court and prescribed by law, is a valid judicial sale : and 2d. That the terms of such a sale may be altered by the plaintiff, without the written consent of the defendant. It is believed that both these propositions are in direct opposition to the settled jurisprudence of the State; and the court is prayed to consider the following statement of the facts of this case, and the argument thereon. The Bank presented its petition for an order of seizure and sale, on the 13th January, 1845. The court on the same day made the order in the following-words : “ Let a writ of seizure and sale issue in this case, according to law, and let II. B. Cenas be appointed curator ad hoc to represent the absent defendant, Isaac E. Morse.” The writ of seizure and sale was issued on the 14th January, and made returnable on the second Monday of March, 1845. It is in the usual form, addressed to the Sheriff in the name of the State of Louisiana, and runs as follows : “You are hereby commanded to make seizure and sale of five certain lots of ground, to wit:The writ, under which the property in controversy was sold, issued on the 14th January, 1845. The Sheriff’s return shows that he received it on the same day ; and that he seized and advertised _the property for sale on Saturday, the 15th March, 1845, after having complied'with all the requisite formalities, and after the legal notices had been issued. But that the sale could not be effected because the same was stopped by order of the plaintijf. He then proceeds in his return to state (after a semi-colon) : “ And again I seized and advertised the same property (of which he gives the description) to be sold on the 24th June, 1845,” on conditions different from those specified in the writ, which was returned on the 18th November, 1845. There is nothing in the return from which the postponement of the sale, under the first advertisement, can possibly be deduced, nor when the seizure was effected, there being only three dates therein specified, the 14th January, the 24th June and the 18th November, 1845. The writ was made returnable on or before the second Monday of March, 1845. None of the requirements under Articles 654, 655, 667, 670 and 671 of the Code of Practice, which are essential to the validity of a judicial sale, appear from the return of the Sheriff to have been complied with. It is impossible to consider the sale as made under the first seizure, for the property was evidently not in the Sheriff’s posses-' sion when he “ again seized it.” Had it been so, his return would certainly have shown what disposition he had made of the rents"of said property. O. P., 656, 657. After the return day of the writ, it is clear that no valid seizure could be made under it. It is obvious, therefore, that the sale in question, as a judicial one, must be considered as an absolute nullity. The evidence is insufficient, in my opinion, to show that it was thus made by the consent of the appellees or subsequently ratified by them.
It is, however, proper to observe, that I was absent on the trial of this cause and consequently did not have the benefit of the oral arguments of counsel. But I have carefully examined the facts and law of the case, in connection with the briefs on file, in arriving at the conclusion to which I have.