
    F. Desplate v. N. St. Martin, et als.
    Where a, debtor waiv.es an appraisement, when called upon by the sheriff, of a,sale of his property on ft. fa., and purchases part of the property himself, he cannot complain of the irregularity of the proceedings.
    from the District Court of the Parish of St. Charles, BurtTie, J.
    
      8. F. Glenn and W. W. Sandlin foi' plaintiff and appellant.
    
    The. petition shows the nature of the action: a suit to annul a sale made by a sheriff without due appraisement or advertisement, and for damages caused thereby.
    We contend that the sale was invalid for the want of due appraisement, the formality of which is sacramental, and which cannot be waived by either party, and notice of which mnst be given in writing. C. P. 671. Says this honorable court in the case of Louis v. Gordy, 5 An. 570: “The rule that the formalities are to be strictly observed, is rather for the benefit of the debtor and purchaser than the creditor.” Again, in the case of Esnault v. Cooley, tutor, 16 An. 165, Chief Justice Merrick held that the waiver of the advertisement deprives a sale by the sheriff of its character as a formal sale. Where the law is sacramental the maxim of volenti non fit injuria does not apply. . His waiver of appraisement did not dispense with the responsibilities of the sheriff. A stipulation that a sale should be made without appraisement ought not to be enforoed. 15 An, 243. Damages are recoverable by Article 2295 of the Civil Code, and the decisions made under it. “A sheriff is hable in damages if defendant in execution lose by the property being sold in an illegal manner.” Orocker v. Watkins,' 4 Martin, 540.
    
      II. F. DeblieiiM for defendants.
    
    The plaintiff relies for recovery on the omission of the appraisement of the property seized; and, in argument, it is contended that there was no notice of seizure. As to this last point, the sheriff’s returns, as well as the sheriff’s deed, dispose of the question, for they say that notice was given, and all formalities complied with.
    As to the first ground, true it is shown that no appraisement was made ; but, at the same time, the evidence shows why it was not made, and that the defendant in execution dispensed with it.
    The testimony of a witness unimpeached and uncontradicted-, whose-testimony was unopposed, and to which the judge below has thought he must give entire evidence, shows that when Desplate was notified to appoint an appraiser he declined, not contumaciously, but for the reason, he alleged, that the property was mortgaged for enough to insure its sale at a sufficient price. When called upon-to signify his waiver in writing, he said there were persons enough around to bear witness to it.
   Howuno, J.

Plaintiff sues to annul a sale of his personal'and real property, made by the sheriff of the parish of St. Charles, under two writs of fi. fa., issued upon judgments against him in the District Court of said Parish. He complains that his property was “illegally seized and sold without appraisement, and without complying with any of the requisites of the law. ”

The sheriff’s return on the two wits, and deed of sale of the real estate, are in the usual form, reciting the seizure, notice, advertising and observance of the legal requisites. It appears, however, from the testimony of the witnesses,.that there was no appraisement of the property made; but it appears also that the defendant was present, and when called on by the sheriff to appoint an appraiser, he declined to do so, on the ground that the landed property was mortgaged for more than two-thirds of its value, and an appraisement was unnecessary. He also become the purchaser of the horse sold at the time. JIe thus waived the appraisement and ratified the sale, and cannot now be heard to complain for the causes urged by him. He has not shown that the property was sacrificed or sold for less than its true value-

judgment affirmed, with costs,  