
    No. 960.
    A. M. E. Church v. N. Duru et als.
    Where the building committee of a corporation sell the corporato property to the builder, in liquidation of his claim, without special authority so to do, the sale will bo declared null. The undertaker will, however, be allowed what remained unpaid on his building contract, and for improve. ments by him made; and will be charged the rents by him received.
    A . EEEAL from the Eifth District Court of New Orleans, Leaumonl, J.
    
      J. J. E. Planchará, for plaintiff.
    
      G. Redmond, for defendant.
   Labawe, J.

This action is brought by the African Methodist Episcopal Church, incorporated under the act of 1817, to annul a sale (alleged to be fraudulent) of a lot of ground belonging to th$m, claiming also $3,400 received by the defendants from the city, for rents of the lot and house, and $749 for movables disposed of by N. Duru, and $1,216 rent and hire of house for their religious worship, etc.

The answer is in the nature of a general denial.

The District Court, having hoard the evidence, annulled the sale, and gave judgment for plaintiffs for $2,335 against N. Duru.

The Court gave also judgment against plaintiffs in favor of said defendant, Nicholas Duru, for the sum of $2,500, as builder, and for a further sum of $1,500.

Nicholas Duru appealed, but he has made no appearance in this Court to point out any error to his prejudice.

After the organization of said corporation, the lot in dispute was purchased to build the church thereupon ; a building committee was appointed to contract for the erection of a suitable building. The defendant, Nicholas Duru, took the contract for $2,755, payable $1,200 on delivery of the key, and the balance on different times of credit. The building having been completed and received, the said undertaker acknowledged to have received on account $591, and the building committee gave notes for the whole balance.

On the 29th of April, 1857, the said building committee and said undertaker, Nicholas Duru, declared in a public act, that said corporation was duly indebted unto the said Duru in the sum of $2,500 for said work; that said Duru had already commenced judicial proceedings to enforce payment, and the said committee made a sale a rcmcré, to said Nicholas Duru in payment of said sum of said lot and all the buildings and improvements thereon; the said vendors reserving the right of redeeming said property within four years from the date of said act, on paying to said Duru the said amount of $2,500.

Nothing in the record shows that this committee was authorized to pass a sale.

The evidence shows that Duru received for rent of said property $2,335, and that he also made improvements on the same to the value of $1,500. The sale being annulled, and the corporation taking back the property, with all the improvements, it is but just that the said corporation should pay him the $2,500, in payment of which he had taken the said property, and also the value of improvements put up by him while he possessed the property.

Upon the whole, we are of opinion that the judgment of the District Court is correct.

Plaintiffs and appellees’ counsel asks, in his printed brief, that the judgment be amended so as to strike out the $2,500, and the $1,500 granted by the lower Co.urt to the defendant and appellant, but no answer has been filed praying for such amendment; a brief is not an answer; it makes no part of the pleadings. C. P. Art. 890.

It is therefore.ordered and decreed, that the judgment appealed from .be affirmed, with costs.  