dissenting. I do not concur in the opinion of the majority of the court for the reason that, as I understand the evidence, the sale of a large and valuable estate belonging to minors of tender years, and derived to them by inheritance from their mother, whose estate at her decease is not shown to have owed a dollar, was sold by their tutor in pursuance of a private agreement made by him with Lloyd. It is clear to me that the tutor has in this instance by using-the machinery of the law, which is intended to guard and protect the interests of minors, endeavored to divest his wards of their rights to-the property in question. He first enters into an unconstitutional act of sale of the property to Lloyd, obligating himself to make a title free from all encumbrances, has it sold, buys it himself through a party, interposed then according to and in fulfillment of his agreement with the purchaser, makes him a title with full warranty. This act he did in contravention of a prohibitory law. Article 337 of the Civil Code is express, that “ the tutor can not either personally or by means of a third person purchase, lease or hire the property of the minor or accept the assignment of any right or claim against his ward.” Lloyd dealt with a party not having the right to sell, and therefore dealt with him at his peril. Bland, the tutor, had no right or interest in the property of the minors which could possibly give him any right to bid for or purchase their property. In. order to bring more prominently into view the facts of this case, I will advert to some proceedings which had been taken previous to this contract between Bland and Lloyd.
After the death of Mrs. Bland, which occurred in 1849, an order of the district court was rendered for a division in kind of the tract of land, containing fourteen hundred and sixty acres, in order to effect a partition between the present plaintiffs and children of Mrs. Bland by a previous marriage The land thus falling to the plaintiffs was theirs-by inheritance from their mother, and it was so decreed. In November, 1858, Bland, as natural tutor of his children, provoked the assembling of a family meeting for the purpose, it seems, to advise the sale of' their land. The meeting advised the sale and recommended the investment of the proceeds in other lands. Their action was approved and homologated by the court, but no order was then rendered. In October, 1859, however, in order to carry out his contract with Lloyd, *608entered into, as we have seen in March of that year, Bland applied for and obtained an order for the sale which was rendered according to the terms prescribed by the family meeting, to wit: One-third in cash, and the remainder in one and two years. The property was sold on the nineteenth of November, 1859, and Person, by attorney in fact, became the purchaser. In the deed of the sheriff Bland acknowledged to have received the money and the notes. Two days afterward, on the twenty-first of November, a petition, at the instance of Bland, was presented to the court, representing that Person wished to pay the two notes in cash, and praying that a family meeting be convoked to authorize the tutor to accept the proposition. The meeting was held on the twenty-fourth, and the authorization prayed for was granted, and the order rendered accordingly. On the twenty-seventh of December, 1859, before a notary in New Orleans, Bland executed a power of attorney authorizing Person as his agent 'to convey title to Lloyd of ■the land in question, and on the second of January, 1860, Person in the capacity of Bland’s agent and attorney in fact by a notarial act made the deed to Lloyd. In this act of sale Person, who figured as the purchaser of the land on the nineteenth of November preceding made the following declaration:
“ And the said James J. Person declares that Maxwell W. Bland of Washington county, Mississippi,* is the owner of said land, but placed, the same in his name for convenience, and he acting in the capacity of agent and attorney in fact of said Blank, by virtue of a power of attorney passed before the undersigned notary on the twenty-seventh of December, 1859, hereby promises and binds his said constituent to ■warrant and forever defend said lands against all legal claims and demands whatever, and guarantees this title to the same in every respect.”
This act of sale was accepted and signed by Lloyd. Lloyd sets up in his answer that if there were fraud aud collusion between Bland and Person that he was no party to it, and ought not to suffer on that account. He further charges in his answer that at and prior to the date of said conveyance to Person the said succession and heirs of Emeliue W. Bland, plaintiff’s mother, were for and on account of said property very largely indebted to said Person, who had been for a series of years the factor and commission merchant for said succession j that the said Person applied the proceeds of the property to the payment of that indebtedness of the plaintiffs, a small portion being used by Bland to carry on the Buck Ridge plantation, the property of the plaintiffs. Lloyd accepted a deed of conveyance from Bland which made known to him that Bland and not Person was the purchaser of the property, and therefore that he purchased at his peril. The allegation that Mrs. Bland’s succession was burdened with debt, is not *609made out by the evidence. Neither is it shown that the indebtedness alleged was contracted on account of the minors. Mrs. Bland died in 1849; the dealings with Person as factor and merchant did not commence until 1851 or 1852, and probably later. Person testified as a witness that the plantation was sold in 1860 to pay the debts of Mrs. Bland and heirs and to enable Bland and the children of the first marriage to divide the property. In the petition of Bland for the family meeting that was convened on the thirtieth November, 1858, .and which authorized the sale, there is not a word about the indebtedness either of Mrs. Bland’s succession or of the minors. No necessity was declared to exist for a sale of a valuable and productive plantation. The act was put on the ground of expediency. The question presented for the consideration of the family meeting was whether under the circumstances it would not be to the interest of the minors that the land should be sold and the proceeds reinvested in other lands. There is no exhibition of the revenues of the plantation and the expenses of the minors showing that the expenses necessarily incurred by the tutorship exceeded the revenues of the miuors.
The heavy indebtedness pretended to exist against the succession of Mrs. Bland and held up as a justification of the sale of the minors’ estate is certainly not shown. On the- contrary, all the facts in the record tend to satisfy me that this indebtedness was created by the tutor himself upon the credit of his children’s estate, to subserve his own purpose, and that little or none of it inured to the benefit of the minors. It surpasses belief that an estate of the productive capacities of that tailing to these minors could not support them, but in the course Of less than ten years should fall in debt ninety thousand dollars. Even had these been debts against Mrs. Bland’s succession {and none whatever are shown), they should have been extinguished and large net revenues preserved by their tutor, if he had discharged his duties. As to the pretensions of the defendant that he was an innocent purchaser and should be protected, I rather think the authority of justice more properly invoked by the plaintiffs to shield them from acts against which they were defenseless and which were concocted and carried out by the one to whom mainly the law confided their rights. I think the judgment of the lower court should be affirmed.