ROADS. See LEVEES AND ROADS. SALE. 1. Form and Validity of the Contract. 1. An agreement with A. that he might have a fourth interest in a stranded vessel which B. had purchased, and which had to be gotten off, did not vest in A. an interest which he could transfer to a third person without the consent of B. It was an agreement to take in A. as a partner, and gave no right to impose an unknown partner on B. Peter B. Taylor v. Henry Penny, 7. 2. A contract of sale in which there is a stipulation, that the vendor may redeem the Col 3. The want of delivery of the thing sold by the vendor is a badge of simulation, and deprives a contract of the essential characteristics of redeemable sales. Ib. 4. Where the parties to a sale of land have agreed in writing upon the price and terms of sale and the description of the land sold, it will be regarded not as an agreement to sell, but as a sale, although there may be a stipulation that the vendor is to make a formal title. If the vendee desires a formal title he must demand it, and until he does so, cannot object to the payment of the price upon the ground that the vendor has not tendered him a formal title. C. C. 2431, 2437. Stephens v. Chamberlin, 656. 7. Where the thing sold remains in the possession of the seller, there is reason to presume the sale is simulated; and the parties must adduce proof of the reality of the sale. C. C. 2456. Ib. III.. Warranty. 8. The purchaser who is apprised of the danger of eviction before the sale, cannot suspend the payment of the price on account of that danger. He has no action until he is evicted. C. C. 2535. Bonnecaze v. Grannery, 166. 9. Where a party has been evicted from the land purchased, he is not bound to pay a note given for the price. But if the eviction be only of a portion of the land, he may be bound ratably for the land of which Courmes v. Cavelier, he was not evicted. 276. 10. The knowledge which purchasers may have of the danger of eviction does not deprive them of claiming the return of the price after the eviction does take place. Scott & Dunbar v. Featherston & Amis, 306. 11. A purchaser who knew, at the time of the purchase, of the existence of outstanding conflicting claims, cannot refuse payment of the price on account of those claims. C. C. 2535. Dwight v. Richard, 365. 12. The possessor in good faith, who is evicted by judgment of a court, is entitled to the increased value given to the property by improvements which he has made. Elbridge v. Tibbitts, 380. 13. Where the property has been sold under an execution against the purchaser so that he can no longer return it, he cannot demand a rescission of the sale upon the ground of eviction from the greater portion of the property; his only remedy is for a reduction of the price. Clark, Adminis II. Causes of Nullity and Rescission of trator, v. Succession of Briggs, 624. the Contract. 5. Sales of property made without any intention of the parties to bind themselves, are not contracts. There is a distinction between the contract, and the instrument of writing which may purport to witness it. C. C. 1755. Andrew Erwin v. Bank of Kentucky, 1. 6. The chapter of the Civil Code, regulating the revocatory action, is not applicable to cases of simulation. In those cases creditors may seize notwithstanding the apparent transfer, and if enjoined may plead and show the simulation on the trial of the injunction. Ib. 14. A claim for the diminution of the price cannot give rise to the action of warranty, for in such a case it is the vendor who is evicted of a portion of the price. lb. 15. Even where there is a stipulation of no warranty, the vendor is bound to restore the price, unless the purchaser was aware at the time of the danger of eviction, and took the property at his peril or risk. C. C. 2481. Bowles v. Alfred, 667. 16. Even where there is an exclusion of warranty in a deed of sale of land, the seller is responsible in case of the eviction of the purchaser, unless he was aware at the time of the purchase of the danger of eviction, and took the property at his risk and peril. C. C. 2481. Sewall v. Roach, 683. 17. Where a suit for eviction is still pending against the purchaser in possession of land, the seller may recover the price upon giving security to indemnify the purchaser. lb. 18. The purchaser cannot refuse to pay the price upon the ground of an apprehended eviction, when a bond of indemnity is tendered him in conformity with C. C. 2535. Squire v. Stockton, 741. IV. Redhibition and Action Quanti Minoris. a physician be called in within a reasonable time, although the slave may have been afflicted with a redhibitory disease. Dupré et al. v. Prescott, 592. 27. The speculative opinions of a physician founded upon a post mortem examination, as to the time of the inception of a redhibitory disease, should not be received as full proof of the fact. Roca v. Slawson, 708. 28. To entitle a party to recover the price of a slave who has died of a redhibitory disease, the slave must have received suitable attention after the disease made its appearance, and medical attendance, if possible, must have been seasonably procured. Ib. 19. Where the seller states in an act for the sale of a slave, that she is and has been, so far as know to him, in good health, and 29. Where a redhibitory disease manialso her parents before her, and the pur-fests itself within fifteen days after the sale chaser agrees to run the risk of her health, of a slave, it will be presumed to have exand the slave dies of consumption, the sel isted at the time of the sale, unless the deler is not bound to return the price, unless fendant shows that the slave had been in he knew at the time of the sale of the ex- the State more than eight months previous istence of the disease. White v. Slatter, to the sale. Kock and McCall v. Stephens, 29. 20. At the time the plaintiff purchased a slave he understood the state of the slave's health, he cannot, therefore, recover the price of the slave in a redhibitory action. Jourdain v. Virgil, 40. 21. Where the seller of a slave made known to the buyer that the slave was an habitual runaway, before the sale, the buyer cannot maintain a redhibitory action for that vice, notwithstanding the act of sale contained the usual warranty against vices and defects. C. C. 2488. Campbell v. Botts, 106. 22. Even where the act of sale of a slave contains a general warranty, parol evidence is admissible to prove that the seller made known to the buyer certain vices before the sale. lb. 23. Where a redhibitory vice appears in a slave within three days after a sale, the presumption that it existed before does not apply to vices of character, such as being a runaway. Dugas v. Estiletts, Administrator, 559. 24. The legal presumption, that where a vice has made its appearance in a slave within a certain time, it existed before, may be rebutted by testimony. The only legal presumptions which cannot thus be rebutted, are those which annul certain acts or refuse a judicial action. Ib. 25. The speculative opinions of physicians derived from a post mortem examination are not. by themselves, full proof of the length of time during which a redhibitory disease existed in a slave before his death. Dupre et al. v. Desmaret, 591. 26. In a redhibitory action for the price of a slave, the party cannot recover unless 739. 30. Where a slave, who has been sold, was afflicted with one disease and subsequently died of another, which did not exist at the time of the sale, the warranty against redhibitory vices cannot be so extended as to embrace the second disease upon the ground that the first predisposed the slave to an attack of the second. Allen v. Campbell, 754. V. Judicial and Forced Sales. 31. A sale under execution of all the surplus funds in the hands of a certain person after the payment of a prior attachment, has no validity for want of a sufficient description, and a monition to confirm such a sale will be dismissed. Marini v. Mourain, 133. 32. Where the sheriff advertises a sale of property between the hours of 10 A. M. and 4 P. M. it is not good cause for an injunction, under the act of 5th March, 1842, fixing the time of making sheriff's sales, and requiring them to commence their sales at 11 o'clock; especially when there is no allegation that the sheriff intended commencing the sale at a different hour from the one prescribed by the law. Dorsey v. Vaughan et al. 155. 33. A purchaser of property at sheriff's sale under a valid judgment will acquire a good title, although in a subsequent litigation between the same parties for the same cause of action, the plaintiff obtains a second judgment for a less amount than the first. Bemiss et al. v. Dwight and Hartman, 170. 34. Where property was sold on twelve month's bond by the sheriff, for less than the amount of a prior mortgage, it was no sale; and the surety on the twelve months' bond is not bound Langfitt and Perry v. Brown, Administrator, 231. 35. Where forty-three slaves are sold by the sheriff under no other description than as the increase of female slaves in the mortgage, the description is insufficient. Seawell v. Payne and Harrison, 255. 36. A party who was aware of the description given by the sheriff in the advertisement of a judicial sale, who treated with the plaintiffs for the purchase of the property, and who from the facts can be presumed to have assented to the sale, is estopped from contesting its validity on account of the insufficiency of the description. Ib. 37. Courts of justice should not overturn judicial sales at the suit of third persons, without securing the rights of those who were parties and who hold to them, by adequate security furnished by the party seeking to set aside such sale. Ib. 38. The purchaser at a sheriff's sale under a mortgage is not concluded by a lease which existed on the property, because it was mentioned in the certificate of the recorder of mortgage when the sale was not made subject to the lease, and the certificate was given without authority. Seghers, Administrator, v. Lemaitre et al. 263. 44. Where a sheriff has made a seizure on two executions, and there was a prior judicial mortgage to which he applied a portion of the proceeds, the property seized not having sold for enough to satisfy the writs, the only interest the judgment debtor has is to see that the proceeds of the sale be applied to the executions. He cannot sue for the money. Sittig v. Morgan, 574. 45. Where a party to a sale of land is bound to furnish a right of way, he cannot enforce the payment of the price until he has complied with that obligation. Rucker et al. v. Liddell, 577. 46. A judgment, execution, and sheriff's return showing a sale and sheriff's deed, are evidence of a forced alienation of property, and impose on those who attack them the necessity of showing that the forms of law have not been complied with. Davis et al. v. Wilcoxen, 583, 47. Where the probate judge in making a sale of succession property, got one of his clerks to act as crier at the sale, and afterwards made the adjudication and passed the acts of sale in his own name, it does not amount to such an informality as to annul the sale; especially as the administrator had received the proceeds, partitioned them amongst the heirs and had his account homologated five years previous to the institution of the suit. Anty v. Anty, 622. 48. Where the defendant has acquiesced 39. The 30th section of the insolvent law of 1808 requires that the syndic must pre-in a sale of his property for more than thirsent a petition for an order of sale before selling the insolvent's property; but where the sale has been made, the non-exhibition of an order of sale does not invalidate the purchaser's title. Heirs of Bastable v. Curry. 411. 40. Where a person having a mere equitable claim to lands permits another to sue the United States for them, and recover judgment, and the lands are sold under an execution against the person having thus acquired a judgment, the original claimant is estopped from recovering the lands from the bona fide purchaser at the sale. Ib. 41. The statute of 6th of April, 1843, directing the mode of publishing advertisements of sheriff's sales, is sufficiently complied with by posting one advertisement at the court-house door, and two other notices in two public places in the same village. Vincent v. Sandford, 560. 42. Where the plaintiff in execution appoints an appraiser of the property to be sold under it, this amounts to a waiver on his part of any error in the advertisement. Lewis v. Gordy et al. 570. 43. The rule that the formalities in forced alienations are to be strictly observed, is intended rather for the benefit of the defendant and purchaser. 1b. ty years, it is not for others who do not set up his title, but repudiate it, to complain of the want of the legal formalities in the sheriff's sale. Morrisson v. Whetstone, 636. 49. Although a deputy sheriff cannot buy property at a sale made by himself, there is no law which prohibits him from buying at a sale made by the sheriff. Hewitt v, Stephens, 640. 50. It is sufficient if a party claiming under a sheriff's sale shows a substantial compliance with the requisites of the law in making the sale; and what is necessarily or reasonably to be inferred from the sheriff's return may be presumed until the contrary is shown. Ib. 51. Where the defendant in execution points out property to be seized on execution, a notice of seizure is unnecessary, and the three days notice before advertising is waived. Ib. 52. If a sheriff's return shows that property was sold, after having the same appraised," it will be presumed there was a legal appraisement, unless the contrary be proved. 1b. 53. The act of 8th of March, 1841, directing sheriffs to advertise their sales in a newspaper, if any were published in the parish, superseded the acts requiring the advertisements to be posted at two other public places in the parish, besides at the court-house. Ib. 54. The act of 10th of March, 1834, declares that the fact of the sale being made, is prima facie evidence that the sheriff made the required advertisements. Ib. 55. Where a person buys a promissory note sold under execution, he acquires no greater rights than the judgment debtor possessed, and is subjected to every equi table defence which the drawer of the note had against the judgment debtor. Mims v. Morrisson, 650. 56. A claim to land founded upon a judicial sale duly recorded, will defeat a claim founded upon a prior judicial sale which was not recorded. Cotton v. Stacker, 677. VI. Sales at Auction. 57. Where real property and slaves are adjudicated to a purchaser at a public sale, and the titles made in the name of that purchaser, parol evidence is not admissible to show simulation in the title, or an agency to make the purchase for the benefit of other co-heirs of the purchaser. Fuselier v. Fuselier, 132. VII. Of Sales generally. 58. In a sale of corn for 68 cents per bushel, when prime corn was selling at 75 cents per bushel, the purchaser is not presumed to have inferred from the price paid that the corn was damaged. He paid a sound price for an article of secondary quality; but was entitled to a sound article. Hosmer v. Baer & For, 35. 59. As a general rule, no man can be divested of his property without his consent, and even an honest purchaser, under a defective title, cannot hold against the true proprietor. Moore v. Lambeth et al. 66. 60. Where the owner stands by and permits his property to be sold as the property of another, without objection, or where he has fraudulently conveyed his property to one, who has sold it to a bona fide purchaser, or where he has entrusted it to a general agent, as a factor or consignee in the habit of selling such property, he is estop. ped from claiming the property in the hands of an innocent purchaser. Ib. the sale under the mortgage, although an innocent purchaser, acquired no title to the plaintiff's property. Ib. 62. The circumstance that the person making a purchase which is attacked as being simulated and fraudulent, had been the attorney at law of the vendor, does not warrant the court in setting aside the verdict of a jury sustaining the validity of the sale. White & Co. v. Slaughter et al. 136. 63. Where the vendee claims property under an act of private sale, which was not recorded until after a seizure by a creditor of the vendor, and the possession at the time of the trial is shown to have been in a third person, between whom and the vendee no privity or connection is shown, it will not be regarded as the possession of the vendee under the act of sale. Wade v. Marshall & James, 157. 64. The receipts of receivers of public moneys for the price of public lands, are sufficient basis for a petitory action, and vest such a title in the owner to subject the lands to the mortgage resulting from the recordation of a judgment against him. Robertson, Trustee. v. Wood et al. 197. 65. If the vendee buys up a better title than that of the vendor, and the vendor was guilty of no fraud, he can only be compelled to refund to the vendee the amount of money he paid for the better title. Equity treats the purchaser as a trustee for the vendor, and acts done to perfect the title by the vendee in possession inure to the benefit of the vendor. Pepper et al. v. Dunlap, 200. 66. No other evidence is admissible to establish the simulation of a sale of immovables or slaves between the parties to the act of sale than a counter letter, or evidence in writing, equivalent to a counter letter. Ranaldson v. Hamilton, 203. 67. Where a curator sues to set aside sales made by judicial authority, upon the ground of collusion and fraud in the sales, he ought to allege that the creditors have but one heir, and that one an universal lebeen injured by the sales; and if there be gatee, who was also executor, who must have been a party to the collusion and fraud, and the estate not alleged to be insolvent, these circumstances will have great weight with the court in maintaining the validity of the sales. Lowry v. Erwin, 205. 68. Where the defendant purchased a plantation at sheriff's sale, and suffered the original owner to remain on it and cultivate 61. The plaintiff had entrusted her ne- it for his own benefit, from motive of friendgroes to an agent to bring from North Caro- ship, he will not be liable for a lot of mules lina to Louisiana to carry on the business of purchased by the tenant to cultivate the planting in Louisiana, and the agent mort-plantation, the latter having made the purgaged the negroes to pay his own debts. chase not as agent but on his own credit. Held by the court, that the purchaser at Rankin v. Stewart, 357. 69. If a man stands by and is silent while it appears from the face of the petition that his own property is being sold, and suffers the vendee has never paid the price, or put another to become the purchaser, he is the vendor in default, and when the delivery estopped from disputing the title thus ac- had never been made to the vendee. Farr quired; and his heirs and those claiming v. Davis, 28. under him are likewise estopped. Blanchard et al. v. Allain et al. 367. 70. An instrument which purports to be a sale, but in which there is no price stated, will not be regarded as a sale, but as a donation. Hagerty v. Corri, 433. 71. Where the defect in an article sold is apparent upon inspection, it affords no ground for an action in warranty. C. C. 2497. Szymanski v. Urquhart, 491. 72. The principle that no one ought to enrich himself at the expense of another, is not applicable to a case of the purchase of a defective article where the parties acted in good faith, the price was not half the value of a good article, and there was no warranty. Ib. 2. Where property seized on sequestration has been lost by the negligence of the sheriff, the plaintiff is liable if the sequestration was illegally issued; and it is not necessary to make the sheriff a party, when the defendant seeks to recover his damages of the plaintiff. Hamilton v. Hurst et al. 150. 3. An affidavit for the sequestration of a crop and certain slaves, stating that the plaintiff has reason to believe and fear that the defendant will sell or dispose of said crop, or cause to be removed said slaves from the State, during the pendency of the suit," is defective, because the plaintiff does not swear to the ownership of the property, and also for uncertainty. Ranaldson v. Hamilton, 203. 73. Where the vendee sues to annul a sale, on account of fr. ud, and to recover 4. To entitle a party to recover damages back the price, when sued by the vendor for the wrongful sequestration of a vessel, upon one of the notes given in payment of he must prove that he suffered damage the price, he may set up in his defence the from the consequent detention of the vessel pendency of the first suit, which bars the to entitle him to recover on that account. second. Kline v. Frerct, 494. Penny v. Taylor, 713. 74. A judgment creditor may disregard a simulated sale, and seize on execution the property covered by the simulation. Hughes v. Winfree, Sheriff, 668. 75. Where a party is bound to execute titles to land upon the payment of the price, he is entitled to a judgment for the price without previously tendering a title. Waterman v. Gibson, 672. 5. The fees paid counsel for defending a sequestration wrongfully issued should be reimbursed, and will be allowed in a suit for damages for the issuance of the sequestration. Ib. SHERIFF. 1. Where the sheriff without any legal order of commitment imprisons a slave, and the death of the slave ensues in consequence of the imprisonment, the sheriff is liable for the value of the slave. But where the 76. A contract purporting to sell a slave, in which the vendor has the privilege of redeeming the slave upon paying a certain sum and interest, the vendee agreeing to pay a certain stipulated hire for the slave during the time, but if the slave is not redeemed, the vendee is to become the abso-death is not attributable to the imprisonlute owner upon paying an additional sum, will be regarded as a security for money lent, and not as a sale. Until the vendee has paid the additional sum, he does not become the owner of the slave and the vendor may redeem, and may deduct the hire of the negro from the amount loaned. Matthews v. Wilson, 691. 77. A plaintiff may seize on execution property which his debtor has transferred by a simulated sale. Maxwell v. Mallard & Armistead et al. 702. SEQUESTRATION. 1. A sequestration in a suit by vendee to recover slaves alleged to have been sold to him, will be set aside upon motion, where ment the sheriff is not liable for the slave. He may, however, be held accountable for the value of the slave's services during the detention. McCarthy v. Lewis, Sheriff, 115. 2. To make the public the victim, because the sheriff had omitted to be sworn according to the Constitution, by declaring his acts null, would be repugnant to justice and the well settled doctrine of the law. Dorsey v. Vaughan et al. 155. 3. The right of a sheriff de facto to perform the duties of his office, cannot be litigated collaterally in a suit between two other persons. Dorsey v. Vaughan, ante p. 155, affirmed. Beard et al. v. Gresham et al. 160. 4. Where property is seized by the sheriff under one writ, if the sheriff receive a second writ, the first levy is sufficient for |