On the Merits.
Bermudez, C. J.The only question to be decided in this controversy is, whether the adjudication made by the sheriff to Mrs. McConnell of certain property in the name of John, Pasley, in 1883, shall or not be rescinded, on account of non-payment of the price, $9500.
Mrs. McConnell contends that John Pasley’s petition discloses no' cause of action, and that his right to ask the nullity of the sale, was finally adjudicated upon adversely to him, and that the matter is forever finally set at rest.
From a judgment sustaining those defenses, Pasley has appealed.
*613It is unnecessary to state the nature of the differences of the parties. They are of long standing and may be gathered from the opinions of this court to be found in 36 Ann. 703, 986; 37 Ann. 552, and in 39 Ann. p. -.
For the purposes of the present litigation it will suffice to make the following statement:
In 1882,while Mrs. McConnell held a judgment for $14,660.59 against Pasley, and whil6 the case was pending in this court on a devolutive appeal, Mrs. McConnell caused property of Pasley to be seized and offered for sale and became the adjudicates thereof for $9500.
Subsequently the judgment, to satisfy which the sale had been made, was reduced to $2980 by this court.
Taking advantage of the word reversed, found in the decretal part of the judgment making this reduction and actiug on the theory that by the reversal of the judgment for $14,660.59, the adjudication made in execution of it was a nullity, Pasley brought suit to have that adjudication annulled, but failed in his attempt. This Court maintained the adjudication, but recognized Pasley’s rights to recover eventually the excess of the price over the amount of Mrs. McConnell’s reduced judgment.
The concluding portion of the opinion reads:
“ As this action presents no feature of a claim for the price, or of the resolutory action for its non-payment, but seeks solely the nullity of the adjudication, we have no occasion to discuss such question now, or the rights of Mrs. McConnell’s transferrees. We simply determine that the present action cannot be maintained.” 38 Ann. 476.
In the course of other controversy between the same parties, this Couit subsequently said, alluding to the decision just mentioned :
“ There was no express reservation to plaintiff (Pasley) of the right to sue for the rescission of the sale for non-payment of the price of adjudication of the property or for the surplus of the proceeds of sale; but there is, in our opinion, a clear intimation to the effect that suit of either character might be brought.” 39 Ann. p. —.
Grounding himself upon what had thus been said, Pasley brought the present proceeding for the rescission of the sale for the non-payment of the price of adjudication.
He has joined as parties to the suit certain persons, the children of Mrs. McConnell, to whom he alleges that, for the purpose of preventing him from recovering the property, Mrs. McConnell has made a simulated title.
It is to this action that Mrs. McConnell and her co-defendants have set up the exceptions of no' cause of action and of res judicata.
*614I.
There is no doubt that the petition does not set forth expressly, so ■as to repel any misconstruction, what is really the cause upon which the relief sought is demanded ■, but, from the circumstance that the plaintiff has averred the judgment invoked as res judicata and has annexed a copy of it to his petition, it may be inferred that the cause of action is, that the'plaintiff has called upon the defendant for the payment of the excess of the price of adjudication and that the defendant has refused to pay it.
Under the opinion and decree in the case alluded to, this was the only relief left the plaintiff.
II'.
The suit resting on such a cause of action, it is clear that as this cause had not previously been averred, it could not be and was not passed upon by the judgment invoked to constitute res judicata.
UndeFthe circumstances, we think that, in furtherance of the ends of justice, the case ought to be remanded to enable the plaintiff to state specifically that payment of the excess of the price of adjudication has been demanded and declined.
It is therefore ordered and decreed that the judgment appealed from be reversed; and it is now ordered .'and decreed that the exceptions be"overruled, and that_this case be remanded, with leave to plaintiff to amend’his petition in accordance with the views herein expressed and to be further proceeded with according to law, appellees to pay costs, from the filing of the exceptions including those of appeal, future costs to abide the final determination of the suit.