
    No. 12,439.
    Dr. C. A. Gaudet vs. Louise Dumoulin, His Wife.
    On Motion to dismiss.
    It is not necessary that the name of the clerk be inserted in an appeal bond. The bond made payable to the clerk of the Oiyil District Court and his successor in office is sufficient.
    On the Merits.
    Parole evidence is not admissible to proye title to real estate.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.
    
    
      
      Lauque & Pomes for Plaintiff, Defendant in Rule, Appellant.
    
      Clegg & Quintero for Defendant, Plaintiff in Rule, Appellee. ,
    Submitted on briefs May 14, 1897.
    Opinion handed down May 31, 1897.
    On the 11th of January, 1897, Mrs. Louise Dumoulin, wife of Dr. ■Gaudet, suggested to the court that she was separate from bed and board from her husband by judgment of court; that on the 18th of February, 1896, an order was issued by the court, decreeing the sale of certain real estate described therein; that the sale was made after due advertisement pursuant to the order; that the property was adjudicated to T. Gaudet, acting for Dr. O. A. Gaudet (her husband) ; that Dr. 0. A. Gaudet, through T. Gaudet, became the purchaser of the property for twenty thousand two hundred dollars; that said sum was due and payable by said Dr. 0. A. Gaudet, and should be ■deposited with the notary to whom the parties to the cause had been referred for a partition. Upon these suggestions, the court ordered that Dr. C. A. Gaudet show cause why he should not be ordered and compelled to deposit with the notary, Charles J. Théard, the purchase price of the property adjudicated to T. Gaudet for-the said 0. A. Gaudet at the auctioneer’s sale.
    The District Court, on trial of the rule, decreed Dr. C. A. Gaudet to be the real adjudicates and purchaser of the property sold at public sale under agreement of all parties to the suit and pursuant to •the order of court, of February 18, 1896, and ordering him to forthwith deposit in the hands of Théard, notary, the price and sum of twenty thousand two hundred dollars, being the sum bid by him in the purchase of the property referred to. Dr. 0. A. Gaudet appealed suspensively from this judgment, furnishing a bond for four thousand dollars, the amount fixed by the court.
    Appellee moved to dismiss the appeal, on the grounds that the amount of the bond was too small to sustain the same, the judgment being for the deposit of twenty-two thousand two hundred dollars, while the bond furnished did not exceed (as required bylaw) by one-half the amount of the judgment appealed from, and the appellant had only prayed for and only been allowed a suspensive appeal, and on the further grounds that the bond was not made payable to the proper person named by law; that it was not dated, and that it was. not executed before any competent authority in the presence of witnesses and was a mere private writing.
   On the Motion to Dismiss.

The opinion of the court was delivered by

Nicholls, C. J.

The amount of the bond furnished being that, fixed by the court would sustain a devolutive, if not a suspensive-appeal. The bond is made payable to the clerk of the Civil District Court and his successor in office. It is not necessary that his name be mentioned. The date of the bond is sufficiently fixed by the recitals of the bond and its filing in the District Court. It is not claimed that the signatures to the bond are not genuine. The fact that the bond did not per se prove that fact would not be a ground for dismissal.

The motion is denied.

On the Merits.

The object of the present proceeding is to force Dr. C. A. Gaudet to comply with the terms of an adjudication made of certain property by Curtis, auctioneer, on the 15th day of April, 1896, upon the ground that he and not Theodore Gaudet was the real adjudicatee of the property. That the property was adjudicated as a fact to Theodore Gaudet appears not only from the •prooes verbal made out by the auctioneer, but by the testimony of the auctioneer himself— that of Felix Loeb, who made the bid for the property, on behalf of Theodore Gaudet — that of Theodore Gaudet, and finally, by the rule taken by the appellee in this case upon Theodore Gaudet, wherein he is referred to as the adjudicatee and sought to be compelled to comply with his bid.

It is now claimed that Theodore Gaudet simply lent the use of his-name to his brother, Dr. C. A. Gaudet, and that the latter was the undisclosed actual purchaser. That fact was attempted to be shown by parol evidence. Evidence of that character was permitted to be received by the court over defendant’s objection and effect was given to it — the court, on that evidence, having held that the property was, in truth, adjudicated to Dr. Gaudet, and ordered him to comply with his bid as such. Defendant reserved a bill of exception to the introduction of this evidence. The effect of the judgment, if sustained, will be to substitute Dr. 0. A. Gaudet for Theodore Gaudet, as the owner of the property under the adjudication made by Ourtis, auctioneer.

Theodore Gaudet and Felix Loeb were placed on the stand as witnesses for the wife, and both positively declared that Theodore Gaudet, in purchasing, was acting on his own behalf. Theodore Gaudet was not made a party to this proceeding.

It would appear from the evidence that a cash deposit had been made for and on behalf of Theodore Gaudet, by Loeb, in che hands of the auctioneer on the day of the sale. That, subsequently, this deposit, or a part of the same, was withdrawn from deposit by Louque & Pomes, on their producing and surrendering to Curtis the receipt which he had given for the same. This fact coupled with the fact that they were the attorneys of Dr. C. A. Gaudet, and not of his brother, and with the statement made hy one of the attorneys of the appellee as a witness for the latter, “ that it was well understood between all parties at the time, that Mr. Theodore Gaudet, who appeared as the adjudicatee, did not represent himself, but represented Dr. Gaudet,” seems to have carried conviction to the mind of the court that the husband was the real, though his brother was the. ostensible adjudicatee of the property.

We are not called on to express any opinion as to whether the' conclusion reached would have been justified by the evidence had it. been legally received, for the reason that, in our opinion, appellant’s, objection to its reception should have been sustained. Appellee cites Peytavin vs. Hopkins, 5 Martin, 439, and Hall vs. Sprague, 7 Martin (O. S.), 243, as supporting the correctness of the court’s, ruling. The parol evidence permitted in the former suit to be introduced was to support the adjudication as made, and not to contradict it or alter its legal results as flowing from its recitals. The latter case was an action of a different character from the present. Plaintiff, in that suit, claiming that there existed fiduciary relations between himself and the adjudicatee, of certain property sold at. auction, which would make it illegal and improper for the latter to-hold the property adversely to him, sought to have the adjudication,, as made to the adjudicatee and as recited, enure to the benefit of the-plaintiff. It is not claimed or pretended here that there were any fiduciary relations between Theodore Gaudet and Mrs. Louise Dumoulin, which would entitle the latter to take and hold the property herself, as the real adjudicatee. She does not claim ownership of the property under the adjudication.

We think the rights of parties in this case are controlled by Hackenburg vs. Gartskamp, 30 An. 898; Perrault vs. Perrault, 32 An. 636; Heirs of Dohan vs. Dohan, 42 An. 449; Sagory vs. Bouny, 42 An. 618, and Whelage vs. Lotz, 44 An. 601.

For the reasons herein assigned it is ordered, adjudged and -decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff’s demand be dismissed, at her costs, in both -courts.  