
    No. 1289.
    H. C. Earquhar vs. H. S. Iles et al.
    A real tender is a condition precedent, sine qua nony to authorize a suit to rescind a judicial sale. When it is alleged, denied and not proved, the plaintiff’s action must be dismissed.
    APPEAL from the Pourteeth District Court, Parish of Calcasieu. Read, J.
    
      R. L. JBelden for Plaintiff and Appellant.
    
      Mitchell & Gorham for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The appellees claim that the value of the real estate, the judicial sale of which is sought to be annulled, is not shown to exceed two thousand dollars, and that this court has no jurisdiction over the controversy.

The plaintiff seeks to recover not only the land, but $500 besides, for the occupancy from the time of sale to the institution of the suit. He swore that the property is worth $2,850, with the buildings and improvements upon it, valuing the land at $900, the gin house at $1,200, the barn at $750, the dwelling and outhouses at $500. A witness places the value at between $1,600 and |1,800. Another appraises it at between $1,000 and $1,500.

The testimony of the defendants, who values the property at $280, which is the'amount at which it was adjudicated to him, and the sum at which it was assessed, $600, previous to the sale, are insufficient to outweigh the valuation put upon the property by the plaintiff.

It may well be that bidders were deterred at the sale, for the reason that, like the plaintiff, they considered that the proceedings in execution of the writ of seizure and sale were irregular and void, and did not expropriate the debtor.

The motion to dismiss is overruled.

On the Merits.

The plaintiff claims that the adjudication made of the property to the defendants is a nullity, for the main reason that the sheriff never did seize and take possession of the same, either actually or constructively, and never placed a keeper on it, though the same was worked as a plantation and was occupied by him and his family.

Other charges are made to affect the validity of services of notices issued under the writ and to establish a conspiracy between the adjndicatee and others, to secure an adjudication at alow price.

Then plaintiff avers a tender to the adjudicatee and to an alleged purchase from him.

The defence is a denial of the tender, the prescription of one year, and the general issue.

From a judgment of non suit the plaintiff appeals.

There is nothing to show that the alleged tender was made, previous to the institution of the suit, which is an essential condition precedent.

The offer, during trial, does not cure the omission which is destructive of the right to institute ths suit.

Article 417, C. P., relied upon, refers to tenders by a defendant at any stage previous to definitive judgment, and does not apply to those which ajpZaintiff is bound to make previous to suit, to have a standing-in court.

This view of the case renders it unnecessary to consider the other questions raised.

Judgment affirmed.  