The plaintiff claims against the defendants the sum of $650, with interest, on the ground that a short time previous to the 20th October, 1857, said Mrs. Hill did sell to him certain property, in consideration of which he advanced, in part payment to said Mrs. Hill, the sum of $650; that said defendants were unable to make title of said property to said plaintiff, and that the said property was resold to other parties at the risk of petitioner; that the property, at the re*sale, brought more than at the first sale.
The defendants answered by a general denial; and, for further answer, they say: that on the 19th'October, 1857, by virtue of an order of Court in the succession of Reed, the property was exposed at public sale and adjudicated to said Charles A. Miltenberger, for the price of $8,000, of which $1,500 wore payable cash, and the balance on the 1st June, 1864, with interest at 8 per cent, per annum, payable annually; that after the said purchase, on the 20th October, 1857, the said Miltenberger paid on said price the sum of $650, but refused to pay any further portion of said cash, nor to give his notes as required by the adjudication; that pursuant to the deliberation of another family meeting and an order of the Judge, the said property was re-sold, at the risk of said Miltenberger, for $8,500, upon the same terms as before; and they say that the difference between the first and the second sales is $835 49, which the cash proceeds of the second sale failed to supply.
The second sale took place on the 11th June, 1859, and the property was adjudicated to one Maynard, who transferred his title to the plaintiff on the 9th December, 1859. The plaintiff contends that he was not properly put in default, in order to render the second sale good á la folie enchére.
There is no evidence showing that said plaintiff was ever put in default; but he pleads and admits in his petition that the property was resold at Ms risk, and it is in evidence that he bought, on the 9th December, 1859, from the second purchaser, Maynard, at the sale made á la folie enchére; thereby approving and ratifying the said sale á la folie enchére, under which he now holds, and admitting that the said second sale was legal, and that he had been put legally in default.
The next question is one purely of law, and that is in regard to the proper application and interpretation of the second paragraph of Article 2589 of the Civil Code, reading thus:
“And if, at the second crying, the thing is adjudged fora smaller price n 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 expenses incurred subsequent to the first sale. But if a higher price is offered for the thing than that for which it was first adjudicated, the first purchaser has no claim for the excess.” /
There are two clauses in this paragraph, each with a penalty imposed on the first purchaser. By the first clause, the first purchaser is bound to make up the deficiency between the first and the second sales, and to pay all expenses incurred subsequent to the first sale; by the second clause, the purchaser has no claim to the excess above the price of the first adjudication. This excess goes to the vendor, although the purchaser be the legal owner of the thing, which is at the risk of the latter *58after the adjudication, Civil Code, Arts. 2442, 2443, 2580. The price of the second sale exceeded that offered at the first adjudication, and we have to apply the second clause of the second paragraph of the Art. 2589 of the Civil Code. But it is contended that the first purchaser is liable for all cost even under the said second clause. We think not. We cannot add another penalty to the law; it was for the legislator to do so. The remedy by sale á la folie enchére is a severe one, and must be confined to cases coming clearly within the provisions of the law. 4 A. 242. The vendors here could have prosecuted the plainiiff for a specific compliance with the terms of the sale, or for dam&gos, by ordinary action, or proceeded to a re-sale at the risk of the plaintiff. 2 L. 403; 7 L. 508; 14 L. 559. They have selected the last remedy; they must stand by the law governing the case, and which it is our duty to apply strictly, as it is a penal one. 1
We are of the opinion that plaintiff in this case is not bound for the cost incurred subsequent to the first adjudication.
It is therefore adjudged and decreed that the judgment of the District Court be reversed; that the defendants’ demand in reconvention be rejected, and that plaintiff recovers of the defendants in solido the sum of six hundred and fifty dollars, with legal interest thereon from the 30th March, 1859, and costs of suit in both courts.
Howell, <7., who tried this case below, did not partioipdte in this decision.