On ArPLioATiON fok Rehearinc.
Bermudez, 0. J.The sheriff charges error in the judgment which condemns him to pay to the. third opponents part of the amount of the adjudication to plaintiff of defendant’s interest or share in the successions of his father and mother.
The complaint is indicated on the theory that, as that interest or share did not, in the partition suit, subsequently realize the amount of the bid, he cannot be held. Such defense cannot, avail. That which the plaintiff bought was the hope that the interest or share of defendant in the succession would realize something to satisfy his judgments, in whole or in part.
It is immaterial whether such interest realized anything afterwards. The purchase may well be assimilated to that of the fisher who sells *137the haul of his net before be throws it, for although he should catch nothing', the sale still exists, because it was the hope which was sold, together with the right to have what might be caught. R. C. C. 2451.
The plaintiff thought that he had bought the interest in question, for he subsequently, in the partition proceedings, was recognized as the transferee of it in place of the defendant, who was there a co-parti-tioner.
Had that, interest realized more than enough to pay the opponents and the. plaintiff, the surplus would have enured exclusively to the latter. He took his chances and cannot complain now that his expectations have been frustrated.
There can be no doubt as to his liability to the third opponents, for he has retained their money, has it and must pay it over to them. With this conclusion he must have felt satisfied, for he has not even asked for a rehearing.
The sheriff has no reason to complain, for the loss is the result of his own dereliction.
Whatever the law be noth regard to the rights to purchasers of real estate at judicial sales .to retain out of the price of adjudication an amount sufficient to satisfy claims, however secured, whether by privilege, special or other mortgage, provided registered previously, it cannot surely apply to cases in which the creditors of such claims intervene by third opposition filed before the sale, asking that the sheriff be ordered to retain the proceeds of sale and where the order of court is made and is notified to the sheriff likewise, before the sale. 1 A. 365; 28 A. 563; 34 A. 58,1.
By reason of such opposition and order thus served, it surely becomes the duty of the sheriff to require from the adjudicatee payment of the price, at least for an amount sufficient to pay the claims of the opponents when allowed. Where the adjudicatee fails to pay, the sheriff should resell on the- spot.
If he does not require payment, but allows the adjudicatee to retain, theu he makes the latter his agent and remains just as liable as if he had actually received the amount.
It is a significant feature in this controversy that the interest seized and sold is the only property owned by the defendant at the time. C. P. 301, 403.
It. is clear that, if the plaintiff and adjudicatee had paid to the sheriff' an amount sufficient to pay what remains due to the third opponents on their judgment, that officer would have had that amount in hand *138wherewith to satisfy that claim. If he has not it, he has no one to blame but himself. Having undertaken tlie risk of a disobedience of the order of the court, he must stand the. consequences of his own imprudence, and temerity.
In the present instance it appears that tlie opposition was filed, that the Older to retain was made and that service of both was acknowledged on the day of sale. In the absence of plea or'proof to the contrary, the Court will ])resume that all this was done before the sale, therefore- fully in time.
Under such circumstances the sheriff is clearly liable and should be held accordingly.
Rehearing refused.