dissenting. Tbe defendant Jones, a resident of Tennessee, being tbe bolder of a note of the plaintiff, a resident of California, for the sum oí one hundred and sixty-eight dollars, brought suit by attachment in the District Court of Madison parish, Louisiana, and attached the interest of plaintiff, being an undivided half, in twenty-five distinct lots and parcels of land, owned by plaintiff jointly with his brother, Thomas M. Story, and containing, in the aggregate, nineteen hundred and fifty acres; all tbe said tracts being described in tbe return of tbe attachment, by section, township and range. A curator ad hoc was appointed by tbe court to represent the plaintiff, defendant in said attachment. Tbe attorney thus appointed not filing an answer, a judgment by default was *75rendered, which was made final on the 1st of May, 1852, for the said sum of one hundred and sixty-eight dollars, interest and costs ; “ and that the land attached be sold in due course of law.” Upon this judgment a writ in the nature of a renditioni exponas was issued, commanding the Sheriff to sell, not the undivided half interest of William M. Story in the land as attached, but the whole of the twenty-five lots and parcels of land, by their description of section, &c.
The land thus seized, was appraised by appraisers appointed by the Sheriff, at five dollars per acre cash, and was adjudicated, in block, at the second crying, to James J. Amonett and Isaac Owen, for two hundred and fifteen dollars and ninety-three cents, being the exact amount of judgment and costs, at twelve month’s credit. This Sheriff’s sale was made in October, 1852. In March, 1853, Amo-nett and Owen sued out a monition under the Act of 1834, which was homolo-gated on the 21st of April, 1853; and on the 16th of May, 1853, Amonett conveyed to Owen his interest in the land so purchased by them jointly at Sheriff’s sale, in the form of a quit claim, for the sum of eleven hundred and ten dollars, “ without any warranty or recourse whatever against him, the said Amonett; the said Owen being acquainted with the nature and title of the said described lands declares that he accepts this transfer at his own risk and responsibility.”
It should be observed that James J. Amonett and Isaac Owen signed Jones’ petition, as his attorney-at-law, and Isaac Owen made the affidavit for the attachment, as the attorney in fact of Jones. Neither Amonett and Owen jointly, nor Owen individually, appear to have taken actual possession of the land, which is proved to have been occupied and cultivated by one James W. Wiley, from 1850 to 1855, that is to say, the cleared portion of the land, being some two or three hundred acres.
Plaintiff brings this action to have the judgment of Jones against him, and the sales by the Sheriff to Amonett and Owen, and by Amonett to Owen, declared null; and for general relief in the premises.
The defendant Jones pleads prescription ; and the defendant Owen pleads the judgment upon his monition.
This suit was instituted the 1st of December, 1854, two years and seven months after the rendition of the judgment in favor of Jones against Story. But Art. 612 of the Code of Practice says, that the action of nullity of a judgment rendered against a party who has not been cited, has no limitation, unless the party was present in-the parish, and yet suffered the judgment to be executed, without opposing the same.
And as to the plea of monition, the 8th section of the Monition Act of 1834, (Bullard & Curry, page 586,) says, that the Act shall not be taken to render valid any sale made in virtue of a judgment, when the party cast was not duly cited to make defence.
William M. Story was not cited in the suit of Jones v. Story. An attachment of his property was obtained upon the oath of the attorney in fact of the plaintiff in that suit, and one of the defendants in this, Isaac Owen, that he resided out of the State of Louisiana, (as he did in fact,) the citation was returned served, by posting a certified copy of the same on the court-house door in the town of Richmond, La. William M. Story was, therefore, only in court by his property, and this case is, consequently, within the letter of the exception expressed in the 612th Art. of the Code of Practice, and in the 8th section of the monition law.
There is also, as I conceive, a radical nullity in the so called judgment in the case of Jones v. Story, which is of such a nature that it would not require to *76be urged in a direct action to annul the judgment, but might be successfully urged as matter of objection to it, if offered as evidence of a right or title in the party who obtained that judgment.
As already mentioned, no answer was filed in the suit of Jones v. Story by the curator ad hoc appointed to represent the absent defendant. A default was entered up, in the following words : “ The defendant having failed to appear cither in person or by advocate, after the delays prescribed by law, judgment by default is rendered against him.” And the final judgment confirming the default, reads as follows : “ By reason of the law and the evidence being in favor of the plaintiff and against the defendant, and the further reason of the default not being set aside, it is, therefore, ordered,” &c. The record shows that the curator ad hoc had filed and argued a motion to dissolve the attachment, on formal grounds ; which motion being overruled, he made no further appearance in the cause. He did not resign his appointment; neither did he carry it out by pleading to the action. Was a judgment by default admissible under the circumstances ?
This point, upon which the plaintiff’s case seems to me to turn, is one of great importance, upon which I have 'found no precedent; which is now presented to us directly for decision, and which comes recommended to our careful consideration by the extraordinary equities of plaintiff’s case.
In approaching it, my attention is first arrested by the peculiarity of the practice which is established by law in Louisiana, in the matter of bringing absentees into court. In every other State, as far as my information extends, the absentee who is sued, is notified by advertisements inserted in the newspapers. In Louisiana alone the court appoints cousel to represent the absentee in the suit under the name of curator ad hoc, or ad litem. The object of the appointment of a curator ad hoc to an absent defendant in an attachment suit is, in the words of Article 260 of the Code of Practice, to represent him and to-defend the suit. The court said, in Brown v. Ferguson, 4 La. 259, that the appointment of a curator ad hoc to an absent defendant, supplies the place of citation. But the object of this legal fiction fails, if the silence of the curator ad hoc is to be construed as a defence. The defendant personally cited, may, if he so choose, say nothing ; not so the curator ad hoc. He is the officer of the court and of the law, and must defend the action. In the cases of Stockton v. Hasluck, 10 Mart. 474 ; Edmonson v. Alabama Railroad, 13 La. 283 ; Collins v. Pease, 17 La. 117 ; Krautler v. Bank United States, 12 Rob. 461 ; and Clacor v. Lane, 5 An. 499 — it was hold that a curator ad hoc to an absent defendant, had no right to waive any de-fence, even of form.
This case seems even stronger than those quoted; for here the case was proved up ex parte, upon a constructive waiver of all defence, in the same manner as if citation had been personally served on defendant. I cannot find any warrant in law for this proceeding, which appears to us, on the contrary, totally inconsistent with the reason and theory of our peculiar practice in such cases.
The silence of the curator ad hoc could not constitute the tacit joinder of issue spoken of in Article 360 of the Code of Practice; for the reason given by the legislator in that Article, does not and cannot apply to this case. That Article reads as follows:
“ When the defendant suffers judgment by default to be taken against him, the issue is joined tacitly; because said defendant is presumed, by his silence, to have confessed the justice of his adversary’s demand; therefore, the defendant is allowed to proceed with his process, in order to have the judgment confirmed.”
*77Now, it is a principle sanctioned by many decisions, that every law empowering courts to decide upon the rights of absentees, must be strictly construed, and the formalities prescribed exactly followed. Hennen’s Digest, verbo Absentee, No. 1.
In numerous cases collected in the same title of Hennen’s Digest, No. 23, it is held, that a curator ad hoc cannot consent to any judgment being rendered against the party whom he has been appointed to represent. It seems scarcely necessary to assert, that he cannot do indirectly that which he is not allowed to do directly. Yet such would be the effect of construing his silence into a proper foundation for a judgment by default.
I, therefore, regard the judgment by default in question, as an absolute nullity, conferring no right upon the defendants herein, and not cured by the judgment of monition.
In answer to the objection that the suit of Jones v. Story involved an amount less than three hundred dollars, and, therefore, could not have been the subject of an appeal to this court, I would observe, that the principal object of the present action, is to annul a Sheriff’s sale of lands proved to be worth more than ten thousand dollars ; and that nullities apparent in the judgment under which that Sheriff’s sale was made, and properly examinable, for the purpose of passing upon the validity of the sale — at least, as between the parties to this record, who were all parties or privies to the said judgment.
I am of opinion that the judgment appealed from ought to be reversed, and that the Sheriff’s sale should be annulled.
Re-hearing refused.