The opinion of the court was delivered by
Nicholls, 0. J.The evidence showed that in a partition suit between J. Gall and the heirs of his deceased wife certain property was ordered by the District Court for Iberia parish on the second day of October, 1896, to be sold for the purpose of effecting a settlement between them.
The property went to sale on the 7th of November, 1896, under an advertisement, which declared the terms and conditions to be “the interest of J. Gall in each tract would be sold for cash — the interest of Sylvanus Gall in each tract would be sold for cash. The interests of the other heirs would be sold one-third cash and the balance in one and two years; the credits represented by notes, bearing eight per cent, interest, secured by special mortgage and vendor’s lien on *16the property sold, with ten per cent, attorney’s fees in case of suit.”
The sheriff upon a day not stated therein made out a proees verbal of the sale of the properties, which was recorded in the Oonveyance Book of the parish of Iberia, from which it appears that the property advertised was adjudicated to Williams and Kyle, Jacob Davies, J. E. Leitmeyer and Mrs. Clara Young, plaintiff, and that the three former complied with their bid by paying cash and furnishing notes with mortgage as required by the terms and conditions, and that in consequence the sheriff transferred to these purchasers the title to the properties bought by them.
The prooes verbal recites the fact that the two properties, a title to which plaintiff claims in these proceedings, had been adjudicated to the plaintiff, but this recital is accompanied by the statement that “Lots IS and 18, adjudicated to Mrs. Clara Young, are not included herein, as she has failed to pay the amount bid by her.”
The adjudication to “ Leitmeyer ” is referred to as lot No. 14, and in reference to the same it is recited that “ lot No. 14, adjudicated to J. E. Leitmeyer, was not included in the transfer, he having enjoined the payment of its purchase price, pending action of the District Court, on his third opposition.”
At the foot of the proees verbal is found a P. S. to the following effect:
“ It is agreed and accepted by all parties concerned, that the purchasers pay the entire amount of the purchase price, and in accordance with said agreement, F. B. Williams and William Kyle, paid the sum of ten thousand and seventy dollars, and J. Davis paid eleven hundred and fifty dollars by check on the New Iberia National Bank at sight, signed P. J. Mestayer, Deputy Sheriff.”
Prior to the sale of the 7th of November, 1893, a large number of persons intervened in the partition proceedings by third opposition, praying that the court direct the sheriff to hold in his hands the amounts of their respective claims — these oppositions were principally directed against the interests of Jasper Gall and Sylvanus Gall, but one was directed against the interest of Mrs. Young, plaintiff.
The opposition of Leitmeyer claimed a priority of payment to the extent of his demand ever all parties in interest.
It was under these circumstances that the sheriff declined in his pro oes verbal to transfer to Mrs. Young the properties adjudicated tO' her as he had those adjudicated to Williams and Kyle.
*17On the 17th of April, 1897, the interests of Jasper Gall and Sylvanus Gall in the two lots which were adjudicated do Mrs. Young, under the circumstances stated, were sold to F. B. Williams under a seizure made thereof in the suit of Bussey vs. Gall et at.; Williams complied with his bid and a title was made to him under the adjudication to him.
On the trial of the rule the husband of the plaintiff was placed upon the stand as a witness for her. In his testimony he stated that he had as her agent bid upon the property claimed by her the sum of two thousand and thirty dollars; that it was adjudicated to his wife; that after the sale he had requested the sheriff several times to make a title to his wife, which he refused to do. That, he finally demanded it of him; that when he made such demand he told the sheriff he was ready to pay him the balance of the price after crediting the purchaser with the amount of money in his hands for ■ Mrs. Young; that he told him he was ready to settle with him in presence of Mr. Oammaek when he called for that purpose. That •the sheriff told him he would let him know later; that later he declined to give the title without assigning any reason; that when he made the demand he told the sheriff that under an agreement .signed by all parties he had been given full power to make the sale, make title and settle with each heir their respective portions.
On cross-examination he stated that he did not make any offer to pay the sheriff any specific sum of money; that he did not do so •from the fact that he did not know the amount the property would get credit for; that he wanted the sheriff to credit the property with the amount he had in his hands and that then he was ready to pay him the balance; that'that was what he told him; that he took to him no sum of money whatever and made no tender of any. He did not do so from the fact that he did not know what particular amount it-would be; that he knew about what it would be, and after the sheriff would have told witness what it was, he was ready to pay the balance.
The only question we have to deal with is whether plaintiff had the legal right to exact of the sheriff, who made the sales of the 7th of November, 1896, a title deed to the property adjudicated to her under the circumstances of this particular case.
We do not find the sheriff to have been either charged with the ■duty of making a partition between Jasper Gall and the heirs of his *18wife or authorized to do so. If the husband of the plaintiff, one of the parties in interest, did not know what amount his wife was called1 upon to pay in order to obtain a title (granting that under the circumstances of this case the sheriff could have claimed anything less of her than a compliance with her bid) — he certainly could not expect the sheriff to be informed upon that subject. We are not called on to' discuss generally the extent of the rights which can be exercised by heirs under the privilege granted them under Arts. 1343 and 2625 of the Oivil Code. The parties to this litigation had by express agreement among themselves as well as by order of court declared that the credit portions of the purchase price should be represented by notes of the purchaser secured by special mortgage and vendor7» privilege on the property purchased. We see no ground upon which plaintiff’s wife could have refused to have complied with that portion, at least, of the bid. The heirs respectively had the right to protect themselves from litigation which might possibly arise from having a title acquired by any one of the heirs through the sale, spread upon the records without the act of sale declaring on its face that the price was secured by special mortgage and vendor’s privilege and the sheriff as an officer could nof waive the rights of any of these parties.
Plaintiff was not forced to an immediate payment of her bid1. Through these notes she would have obtained the full time which the parties agreed purchasers should have. Granting it to be true that plaintiff as an heir was not called upon to pay the cash portion of her bid, that fact would not justify her in asking a title unless she should simultaneously execute the notes - called for by the condition» of sale.
We have so far considered the situation as one purely between the heirs themselves; that is independently of the fact that numerous third oppositions were filed in this proceeding requiring the sheriff to hold in his hands the amounts named. The legal complications-which would arise from sustaining pretensions such as are advanced by the plaintiff in this case, and the danger which the sheriff would run by departing from orders of court which he was bound to obey, so manifestly show the correctness of that officer’s refusal to make to the plaintiff the title she claims under the circumstances shown, that we do not-think it necessary to discuss the subject at length.
It is possible that the situation may be such- as that plaintiff will *19ultimately obtain the benefit of her bid upon the property in controversy under her bid, but that is a matter not before us asp matters stand and with the parties before us.
The judgment of the District Court is affirmed.