■ The opinion of the Court was delivered by
Bermudez, C. J.This is a suit for specific performance. Its object is to compel the defendant to comply with the terms of sale of certain real estate which she had agreed to buy.
The answer is, that one-third of the property does not belong to the plaintiff aind that he cannot give a clear and good title to it.
The lower court dismissed the suit, and the plaintiff appealed.
' Deeming the judgment one of non-suit, the appellee prays that it be amended, so as to make it final and absolute in his favor.
The plaintiff claims to have acquired the property in question from Simon Berkson, who himself acquired it, as adjudicatee, at a judicial sale made to effect a partition thereof. The parties, plaintiffs therein, were Scherck & Berkson, and the defendants were Mrs. Rosenberg,' a surviving wife, in community, and her minors, the issue of her marriage with her deceased husband.
• It appears that in 1871, tbe property in question was purchased, share and share alike, by D. Rosenberg and his commercial partners, Scherck & Berkson. Subsequently, in the same year, Rosenberg died, leaving a widow and minor children, his interest in the property being appraised at $3,333.33, and that in tbe partnership, at $8,867.91. After taking an inventory, tbe widow was confirmed as tutrix. It was then thought proper to sell the sixth interest of the minors in the succession of their father, to Scherck & Berkson. A family meeting recommended that it be so done for $5,250, which was settled for in cash and notes by tbe purchasers. The widow sold her sixth interest to the same parties for a like price.
It was subsequently considered that this transaction was tainted' with nullity and, consequently, that the title had not passed.
A suit in partition was then brought before the Second District Court, to arrive at a judicial sale of the property. Judgment was rendered to that end ; a family meeting was called to fix terms ; the prop-was advertised and adjudicated to Scherck & Berkson, and an act was passed to transfer title to them.
*380This proceeding was afterwards treated as a nullity, because the court had no jurisdiction in the premises.
In 1878, therefore, Scherck & Berkson brought suit before the Sixth District Court, for a partition, against the widow in community, who was then absent and who had married again, without having been retained in the tutorship of her children, and also, against those minors. A tutor was appointed to fill her place as tutrix. Sim ultaneously, they applied to the Second District Court for an inventory, appraisement and family meeting, both courts giving cumulatively similar orders. The terms of sale were cash; the property was advertised, one-third cash, the balance on a credit of one and two years for notes bearing interest.
The property was offered for sale and adjudicated to Berkson.
No cash was paid; no notes were furnished. The act of sale was executed by the auctioneer. It contains a recital of facts, made by Scherck & Berkson, in which they explain how and why no money and notes or consideration was furnished; the reason-being, that the money had been paid to Mrs. Rosenberg in 1871, at the time of the private sale, and when she was still tutrix.
The inscription in favor of the minors against their mother, as their tutrix, has never ceased to be extant on the mortgage register of this parish, and no order of court has ever been procured for its erasure.
There can be no doubt that the undivided sixth of Mrs. Rosenberg was sold by her ever since 1871; but it passed encumbered with the mortgage in favor of her children. However much, in the partition proceedings, that sale may appear to have been treated as a nullity, the same was none the less real and valid as to her. There is nothing in the record to show that title was ever reconveyed to her and that the money was ever returned by her. So that there never was any judicial sale of her share in the property.
Whatever the doctrine invoked be, that, by the judicial sale of encumbered real estate, the mortgage is shifted to the proceeds, it can receive no application in the present instance, in which there was no judicial sale whatever. This is glaring, for the reason that the sixth interest of Mrs. Rosenberg had passed by contract in 1871, long before the alleged judicial sale, and was not therefore divested at that time or in that mode.
Pretermitting what fatal irregularities are claimed to exist in the partition proceedings, it is undeniable that the price of adjudication, as regards the minors, was paid neither in cash, nor according to the terms of the advertisement, nor otherwise.
The argument that Mrs. Rosenberg had received that price in 1871, *381at the date of the private sale, which was treated by her and the purchasers as a nullity, cannot stand on its own bottom.
If the tutrix had then no right to sell, she had no right to receive the price, which it would have been her duty to return, as soon as the sale was considered and treated by all as.of no effect. How could, and did she then bind the minors in receiving that price?
The deed made by the auctioneer, embodying the recitals made by the original apparent purchasers, shows a sale without any consideration paid, and is, on its face, such as conveyed no title of ownership. The property of minors, no doubt, can be sold and an irrevocable title made to it, but this can take place only after the essential forms of the law have been complied with and on payment of the price of sale to one, at the time of sale, in authority to receive it and give acquittance therefor as the proceeds of the sale thus made.
In the present instance the statement refutes itself, that the price of the undivided sixth of the minors in the property, the object of this suit, alleged to have been judicially sold in 1879, wus paid to their mother and unauthorized tutrix in 1871, some eight years previous to the institution of the partition suit, in which it is alleged that it was, adjudicated, and who had ceased to be tutrix long before the pretended judicial sale.
The judgment of the lower court having passed upon a litigated controversy, in which both parties have as fully developed their means of attack and defense as was practicable, should be considered as finally and absolutely adjusting and setting at rest the differences at stake.
Viewing it in that light,
It is ordered and decreed that the judgment appealed from be taken as rendered in favor of defendant, rejecting plaintiff’s demand, and that, thus taken, it be affirmed with costs.
Fenner, J., recused, having been connected with proceedings on the subject matter of this suit.