
    (44 South. 908.)
    No. 16,523.
    DOUCET et al. v. FENELON.
    (June 17, 1907.
    On Rehearing, Dec. 2, 1907.)
    1. Real Actions — Petitory Actions.
    The present is a petitory action. Though, plaintiffs set out in their petition the proceedings on which it is asserted their interest in the property claimed was divested, they allege that they were absolute nullities. They had at their risk the right to bring such an action.
    [Ed. Note. — For cases in point, see Cent. Dig-vol. 42, Real Actions, § 22.]
    
      2. Same — Pabties.
    In a petitory action brought under ordinary conditions, the only parties necessary originally to the action are the plaintiff and the party in possession of the property. If the defendant so. desires, he can cause his vendor or lessee to be made a party.
    [Ed. Note. — Eor cases in point, see Cent. Dig. vol. 42, Real Actions, § 28.1
    3. Judicial Sales —Powers of Sheriff — Commission — Authority to Deviate from.
    The writ or commission directed by the court to the sheriff to sell certain property constitutes for him his sole guide. He has no authority to deviate from its terms. When he is ordered to sell certain property in entirety, which had been declared not divisible in kind, he is without authority to divide 'into separate halves and sell each half separately; nor has he authority to advertise the property for sale before the commission had been placed in his hands and to sell it on the same day the commission reaches him.
    [Ed. Note. — For eases in point, see Cent. Dig. vol. 31, Judicial Sales, §§ 20, 37.]
    4. Same — Ratification of Invalid Sale.
    Parties are not held to have ratified proceedings which are null, when they act in ignorance of such nullities.
    [Ed. Note. — For cases in point, see Cent. Dig. vol." 31, Judicial Sales, § 70.]
    On Rehearing.
    5. Appeal — Pleading — Abandonment of Grounds of — Presumption.
    Whilst the silence of counsel may, at times, authorize the presumption that a particular ground of attack or defense set up in the pleadings has been abandoned, such presumption is not juris et de jure, and will not be enforced when it is reasonably certain that the intention to abandon never existed.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1079-1120.]
    6. Partition — Judicial Sales — Actions to Set Aside — Time for Bringing — Statutory Provisions.
    Where, in an action for the partition of a single tract of land, judgment is rendered ordering that the tract be sold for cash as to the interest of the major, and on terms to be fixed by a family meeting as to the interest of the-minor, litigants, and, no legal family meeting having been held, the sheriff sells the laud in two lots, by separate adjudications, entirely for cash, an action brought by the minors, within five years after attaining majority, to annul the sale because of the sheriff’s lack of authority in the premises, is not barred by the prescription of five years established by Civ. Code, art. 3543. But, if not brought within the five years, such action is barred by the prescription established by Civ. Code, art. 3542.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Partition, § 372.]
    7.Judicial Sales — Ratification.
    In the matter of executed contracts and public sales which are susceptible of ratification, such ratification is presumed from the silence of the party interested during the time within which the action to annul or rescind becomes prescribed; otherwise, ratification can be established only by proof of facts leaving no doubt as to the knowledge and purpose of the party against whom it is alleged.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 31, Judicial Sales, § 70.]
    (Syllabus by the Court.)
    Appeal .from Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge.
    Petitory action by Adam Doucet and others against Michael Fenelon. Judgment for defendant and plaintiffs appeal.
    Judgment affirmed as to plaintiff Adam Doucet, and as to the other plaintiffs. reversed and remanded.
    Ogden & Robira and De Baillon, Mouton & Mouton, for appellants. Gilbert Louis Dupré and Hampden Story, for appellee.
   NICHOLLS, J.

In May, 1894, Ermance Doucet, wife of Eli Ledoux, and Marie Dou-cet, wife of Jean B. Simon, joined by their husbands, filed in the district court for Acadia parish a petition in which they alleged:

That their father, Achille Doucet, had died, leaving Mrs. Celima Reed as surviving widow, and the following forced heirs, namely, Adam, Derbusse, Leonce/and Dominique, minors, issue of his marriage with their mother aforenamed, also petitioners.

That their said mother, Celima Reed, as surviving widow in community, was the undivided half owner of the property below described, and petitioners and the four above-named minors were the other undivided one-half owners of said property; said land being situated in Acadia parish, and being N. W. % section 29, township 8 S., range 1 W., containing 161.22 acres. That it was their desire and right to have the above-described property partitioned, as they were unwilling to remain in indivisión with their co-proprietors.

That owing to the situation and conformation of said property the same was not susceptible of division in kind in such a manner as to give each of the aforesaid co-proprietors an equal amount of said property having like value.

That accordingly it was necessary that said property should be sold and the proceeds divided among the co-owners according, to their respective and several interests therein.

That their aforesaid mother was of unsound mind and subject to a habitual state of insanity. That accordingly a curator ad hoe should be appointed to assist their said mother in these proceedings, and a curator ad hoc should likewise be appointed to represent each of the aforesaid minors, who have no regular tutors.

In view of the premises they prayed that a curator ad hoc be appointed to assist their .aforenamed mother in these proceedings, on whom, as well as upon her, process may be served, and against whom, with her, these proceedings may be carried to final determination ; that a curator ad hoc be likewise named to each of the aforenamed minors for the same purpose; and that said curators be •qualified accordingly.

They prayed for citation to the aforenamed Mrs. Celima Reed and upon her curator, as also to the aforenamed minors, and for judgment decreeing the aforesaid property to be insusceptible of division in kind and ordering same to be sold for cash to effect such a partition.

That Elridge W. Lyons, sheriff of parish of Acadia, be appointed receiver to make the aforesaid partition and to distribute the proceeds ratably among the aforenamed eo-pro-prietors, and after paying the expenses of the sale, and reserving their right to have convoked a family meeting on behalf of afore-named minors to fix and determine the terms ■of sale of said property in so far as said minors were concerned.

They prayed for all other necessary orders and decrees in the premises, and for costs, and for general relief.

The district judge acted upon' this petition on the 16th of May, 1894. He ordered that William Reed, uncle of the aforenamed minors, be appointed curator ad hoe to represent each of them in the proceedings, and further ordered that Rudolph Reed, brother of the aforenamed Mrs. Celima Reed, be appointed curator ad hoe to her, to assist her in defending this suit. He further ordered that process issue against said minors and said Mrs. Celima Reed, and be served on their aforenamed curators ad hoc and on said Mrs. C. Reed, who were thereby authorized to represent them and assist said Mrs. Reed in these proceedings.

The parties named as curators ad hoc took an oath as such; the curator of the said minors taking a separate oath as curator of each of the minors.

On the 25th of June, 1904, the district court rendered the following judgment:

“This is a suit by the plaintiffs, as heirs of Achille Doucet, decedent, for the partition of the following described property, situated in Acadia parish, to wit:
“Northwest quarter of section 29, township 8 south, range 1 west, containing 161.22 acres, bought by the deceased during his marriage with Celima Reed, his surviving widow, and therefore belonging in indivisión between her and the heirs of the deceased named in the petition.
“The evidence discloses that the land is insusceptible of indivisión in kind, so as to give each co-proprietor an equal quantity of land of like character or value, and the petition discloses that most of the co-owners desire a partition of said property. This justifies a decree of partition as demanded for cash, the interest of the minors to be sold on such terms as may be advised by a family meeting of said minors.
“For these reasons, and because the law and the evidence are in favor of the demands for said partition by sale of the property afore-described, it is now ordered, adjudged, and decreed that said property be, and it is hereby, ordered to be insusceptible of partition in kind, and it is now ordered to be sold at public auction for cash, after due advertisement, in so far as the major heirs are concerned, and the interest of the minors of deceased is hereby ordered to be sold on such terms as may be fixed by a family meeting of said minors, composed of the following nearest relatives of said miriors, viz.: Rudolph Reed, Wm. Reed, Dupre-lon Doucet, Melon Doucet, Narcisse Doucet— •which is hereby ordered to be convoked and held before Gustave E. Fontenot, notary public, of above parish, to decide on the terms of sale of said property in so far as said minors are concerned. It is further ordered that E. W. Lyons, sheriff, be and is hereby appointed receiver to make said sale and distribute said proceeds of sale, and the other half to be equally divided between the following surviving heirs of Achille Doucet, decedent, viz.: Ermance Doucet, wife of Eli Le Doux, Marie Doucet, wife of Jean N. Simon, Adam, Derbusse, Leonce, and Dominique, the four last named minors, whose shares of said funds to be paid to their curators ad hoc.”

On the 5th day of July, the clerk of the district court issued an authorization to Gus-tave Fontenot, notary public, to hold the family meeting directed to be convoked by the district court for the purpose of fixing the terms and conditions of sale of the real estate held in indivisión belonging to the estate of Achille Doucet, in so far as the minors named were concerned, and on the same day the family meeting composed as directed was held. It was unanimously recommended by the members that all the property held in indivisión by and between said minors and their co-heirs, said property being described as the N. W. of section 29 in township No. S of range 1 W., and containing 161.23 acres, be sold upon the following terms and conditions,' to wit: For cash to the last and highest bidder at public auction. There was no undertutor present at said meeting, none having been appointed.

On the same day the following petition, addressed to I-Ion. R. T. Clark, clerk of court of Acadia parish, was filed:

“The petition of the undertutor of the minors, Adam, Derbusse, Dominique, and Marie, respectfully represents that a family meeting of said minors was duly held on July 5, 1894, before Gus. E. Fontenot, notary public, of Acadia parish, to wit, and recommended a sale of the minors’ interest in the land sought to be partitioned in suit No. •-, entitled ‘Ermance Doucet et al. v. Mrs. Celima Reed,’ for cash, as fully appears by said proceedings; that said recommendation is for the interest of said minors and should be approved. Wherefore he prays that said recommendation be approved and homolo-gated. At that time no undertutor had been appointed to the minors. None the less the clerk of the court on that petition approved and homologated the proceedings nunc pro tunc.”

On the 11th of August, 1904, the clerk of the district court issued to Elridge W. Lyons, sheriff of the parish of Acadia, the following commission:

“By virtue of a judgment of the Honorable Eleventh Judicial District Court in and for the parish of Acadia, and in pursuance of the recommendations of a family meeting held by Gus. E. Fontenot, notary public, on July 5, 1904, in the interest of the minors Adam, D'r-busse, Leonce, and Dominique, you are hereby authorized and commissioned to sell for cash according to law to the last and highest bidder at the principal front door of the courthouse on Saturday, Aug. 11, 1904, the following described property, situated in the parish of Acadie, to-wit:
“The southwest quarter of section 29, township 8 south, of range 1 west, containing 161.21 acres, for the purpose of effecting a partition thereof among the widow and heirs of Achille Doucet, deceased, and make due return thereof according to law.”

The following procés verbal of sale was filed by the sheriff:

“Be it remembered that on this 11th day of August, 1894, in pursuance to a commission hereto annexed of date August 11, 1894, issued by D. B. Hayes, Dy. clerk of the 11th judicial district court in and for the parish of Acadia, granted under a judgment rendered in suit No. 579 of said court, entitled ‘Ermance Doucet, Wife, et al. v. Celima Reed, Widow, et al.,’ Elridge W. Lyons, sheriff and ex officio auctioneer of above parish, appointed receiver under the judgment aforesaid, proceeded at the front door of the courthouse at. Acadia parish to make said sale as ordered, and the hour of 11 o’clock a. m. having arrived, I proceeded to make said sale by first reading the aforesaid commission, as also the advertisement of said property for sale contained in the Crowley Signal newspaper for 30 full days, and by announcing to the public in attendance the terms and conditions of said sale, to wit, cash, and also had said property duly appraised by two disinterested appraisers chosen by plaintiffs and defendant in said suit, whereupon I proceeded to sell and adjudicate said property to the persons below named, they being the last and highest bidders on said terms.
“(1) The west half of the N. W. quarter of section twenty-nine in township eight south, range one west, containing, eight 01/ioo acres, sold and adjudicated to William W. Duson for the price and sum of seven hundred and fifty dollars. [Signed] W. W. Duson.
“(2) The east half of the aforesaid section, same township and range, sold and adjudicated to Mrs. Celima Reed, widow, through her curator, Rudolph Reed, for the price and sum of three hundred dollars. [Signed] Rudolph Reed.
“Haying sold all of the property described in the aforesaid commission and judgment of partition, I have closed this procés verbal of sale on the aforesaid 11th day of August, 1894, .in presence of Dallas B. Hayes and Gustave E. Eontenof, competent subscribing witnesses, who have signed hereto, together with the purchasers aforesaid on said day and date.
“[Signed] E. W. Lyons,
“Sheriff and Ex Officio Auctioneer.
“Witnesses:
“D. B. Hayes.
“Gus. E. Fontenot.”

The foregoing was recorded on the 29th day of October, 1904, in Conveyance Book.

On the 21st of August, 1894, Ermance Dou-cet, wife of Eli Ledoux, and Marie Doucet, wife of Jean N. Simon, joined by their husbands, addressed a petition to R. T. Clark, clerk of the district court, in which they declared that on the 5th day of July, 1894, there was held before Gus. E. Fontenot, notary public, of said parish, a family meeting of Adam ’Derbusse, Leonce, and Dominique, minors, issue of the marriage of Achille Dou-cet, deceased, with Celima Reed, surviving widow, and recommended a sale of the property sought to be partitioned in above suit, in so far as said minors were concerned, for cash; that at the time of said family meeting said minors had no under tutor; and that an undertutor should be appointed to said minors. They prayed for the appointment of Jean N. Simon as a suitable person for said trust.

The clerk of court on said petition appointed Jean N. Simon undertutor.

The transcript of the proceedings had in the matter of the partition suit does not show any citation upon the curators named nor any citation personally upon Mrs. Celima Reed, the surviving widow, nor any appearance by or on behalf of any of the defendants through pleadings. No minute entries are in the record. The note of evidence copied in the transcript refers to the case as one confirmed on default, but we find nothing to show that a default was ever entered. The clerk certifies that all the evidence offered on the trial of the confirmation of the default was:

(1) Certified copy of act of sale from-• to Achille Doucet, together with certificate of registry.

(2) Oath and appointment of tutors ad hoc and curators ad hoe filed in the record.

(3) Testimony of Jean N. Simon.

(4) Testimony of Melon Doucet.

The testimony of the witnesses is in the transcript. They testified “that Achille Dou-cet was dead; that his wife, Celima Reed, was living; that the heirs were Ermance Doucet and Marie Doucet, majors, and Adam, Derbusse, Leonce, and Dominique, minors ; that they knew the property sought to be partitioned in the suit; that the land was susceptible of division in kind among the heirs, and would have to be sold to effect a partition. Madam Doucet was a woman of weak mind. She had not sufficient intelligence to administer her own affairs.”

If any inventory was ever made of the property of the succession, that fact does not appear. On the 5th of October, 1906, the present suit was filed by Adam Doucet, Leon Doucet, Joseph Doucet, and Dominique Dou-cet, children, issue of the marriage of Achille Doucet and Celima Reed, who were minors at the time of their father’s death and up to and beyond the date of the sales made in the matter of the proceedings referred to.

In their petition they recite those proceedings in detail, including said sales, alleging that they were absolutely null and void; that the same was patent upon the face of the record, for the allegations and reasons stated and in the particulars and for the reasons following, to wit:

“(a) Because there was no undertutor of said minors at the time the so-called family meeting was held, and no undertutor was there present to advise, and no undertutor to sign, the proceedings thereof, or recommend the homologation thereof, and because the proceedings of the said family meeting were' never legally homologated, and in reality there never was a family meeting held according to law, fixing the terms of the sale of the interest of the minors in said property, as decreed and required in the judgment ordering the partition sale.
“(b) Because the appointment of the so-called undertutor was based on a petition which was filed long after the said family meeting was held, and which was addressed to Hon. R. T. Claris, clerk of the district court, and not to the judge .of said district court, as required by law, and because said undertutor was the husband of Marie Doucet, one of the heirs who sued for the partition, and who appears to authorize her to sue, and who should not have been appointed undertutor.
“(c) Because the petition of the undertutor for the homologation of the proceedings of said family meeting was also addressed to the said clerk of court, and not to the judge, as required by law, and because the said clerk undertook without power or authority to homologate said proceedings nunc pro tunc and to date the petition for the homologation and the order granted thereon with the date on which the family meeting was held and the proceedings filed, and to antedate the application for the appointment of the undevtutor and the order making the appointment as aforesaid.
“(d) Because the court had no authority to appoint the sheriff as receiver, with power to distribute the proceeds to be realized from the partition sale, and because the commission to the sheriff to make said sale was issued the same day the sale was effected.
“(e) Because the law did not authorize the appointment of a curator to represent the minors in the partition proceedings before their natural tutrix had been destituted of the tutorship by proper proceedings.
“(f) Because but one and the same curator ad hoc was appointed for the four minors, and not one curator ad hoc for each minor.
“(g) Because there is no act executed showing the distribution of the sale of the proceeds of the sale of the property, or how the said sale proceeds were distributed, and who received the shares of the four minors as shown by the record ; and if such was executed, which is denied, the said four minors, the petitioners herein, were unrepresented thereat — there being no order of court appointing the tutor ad hoc or curator ad hoc to each of the said minors as required by law.
“(h) Because the said pretended partition has never been approved and homologated as required by law.
“(i) That said pretended partition was obtained by default, without legal or sufficient proof showing that the properly sought to be partitioned was indivisible in kind; that the testimony of Jean N. Simon, who was the husband of one of the plaintiffs in said suit, was admitted and considered in violation of a prohibitory law — said testimony being null and void, as also the pretended corroboration of said testimony by the two witnesses.
“CD Because at the time of the institution of the said partition, and long prior thereto, and since, the said Mrs. Celima Reed was notoriously insane, and the said proceedings could not be carried on against her as they were; that the' insanity of Mrs. Celima Reed was well known to the plaintiffs and their husbands in said partition suit, and to \V. W. Duson, the pretended purchaser of said sale, and to all subsequent vendees, and at the instance of which plaintiffs the suit was instituted.”

Petitioners further averred:

“That the partition sales predicated on these proceedings were absolutely null and void, and the purchaser thereat, through her curator, Rudolph Reed, acquired no title or ownership in said land, and that likewise the vendee of said adjudicatees acquired no greater titles than their authors, and that the undivided interests of your petitioners therein were never transferred or conveyed by the pretended adjudications. That since the said partition sale the said W. W. Duson, one of the adjudicatees thereat, by act before Gus. E. Fontenot, notary public, of date October 81, 1894, sold to C. C. Duson the west one-half of the north one-quarter of section twenty-nine in township eight south, of range one west, Louisiana meridian, and containing eighty and sixty-one one-hundredths acres, more or less, and being the same property W. W. Duson pretendedly acquired on August 11, 1904, at said pretended partition sale; that C. C. Duson has purchased from Celima Reed, through her pretended curator, the other adjudicatee at said pretended sale, the east half of the aforesaid section, same township and range; that said vendees acquired no greater title than their authors; that since the said partition sale said land has been subdivided into town lots, upon which most of the town of Iota, Acadia parish, is built; and that Michael Fenelon, a resident of the parish of Acadia, among many others, had' purchased from C. C. Duson, the vendee of W. W. Duson, several blocks and lots of ground, which are- part of said tract of land and described in the sale of C. C. Duson, through his duly authorized agent, W. W. Duson, to Michael Fenelon, of date November 2, 1898, before Gus. E. Fontenot, notary public, as follows, to-wit: The whole of block number four, as per plat of said town of Iota, containing fourteen lots; lots one, two, three, five, six, nine, ten, eleven, and twelve, of block five, in said town of Iota; the whole of block number ten, containing sixteen lots, numbered from one to sixteen, in said town of Iota; also lots two, three, four, five, and six, of block number twelve, in said town of Iota; also lots number nine, ten, eleven, twelve, thirteen, and fourteen, in the said town of Iota, block No. 3, acquired by the defendant, Michaei Fenelon, from M. P. Fenelon, by act of sale before Joseph Flash, notary public, of date April 5, 1900 — all of the aforesaid described property being situated in the town of Iota, Acadia parish, Louisiana, as per plat of said town of Tota, on file in the clerk’s office, Acadia parish, March 18, 1895; said property lying west of the Midland Branch of tlie Louisiana Western Kailway and being a part of the west half of the northwest quarter of section 29, township 8 south, of range 1 west, Louisiana meridian.
“Petitioners aver that W. W.-Duson, the ad-judicatee at said pretended partition sale, has never had any title of ownership to said land as aforesaid, and' could not and did not transfer or convey any title or ownership thereto to his vendee, C. C. Duson, and that the said C. C. Duson likewise had no title, and could not and did not transfer any title, to the defendant, Michael Fenelon; nor did M. F. Fenelon acquire any title or ownership to said property, and therefore could not and did not transfer or convey any title or ownership to the said Michael Fenelon; and that the said Michael Fenelon has therefore no title to said property, blocks, and lots as before described, and is now in illegal possession thereof; that the petitioners are the owners thereof, in the proportion of an undivided one-sixth interest to each petitioner, in the undivided one-half to four-sixths of the undivided interest in the undivided half of lots so purchased; that the value of the property herein sued for is worth more than the sum and price of twenty-five hundred dollars.
“Petitioners aver that your petitioner Adam Doucet is now twenty-seven years of age, Joseph Derbus Doucet is twenty-five years of age, and Leon Doucet is twenty-three years of age, and that your petitioner Dominique Doucet is over eighteen years of age, and had by judgment of the court been duly emancipated and relieved of the disabilities attached to minors, and authorized to perform all acts as if he had attained the full age of twenty-one years, and that they desire and are entitled to recover the ownership and possession of that undivided interest in said lots of ground from Michael Fenelon in the proportion above stated, of which title and ownership they have never been divested.”

In view of the premises:

“Petitioners pray that the said Michael Fene-lon be duly cited to answer this demand, and that, after hearing had, your petitioners have judgment against defendant, decreeing the proceedings leading up to and including the partition sale, and the adjudications or sales, for the reasons alleged and specified in above petition, to be absolutely null and void, and that petitioners have judgment against said defendant, Michael Fenelon, recognizing their ownership each to one-sixth of the undivided half of said lots above described, or four-sixths of the undivided one-half of said lots for your four petitioners; and decreeing them the owners of said undivided interest in the proportion above set forth, and ordering the delivery of possession thereof to your petitioners, with all costs of this suit. Petitioners conclude by praying for all other orders and decrees necessary in the premises, and for general relief.”

— In these exceptions defendant urged that to attack collaterally the judgment of partition; that if it was null, as having been rendered upon insufficient evidence, plaintiff should have sought to set it aside by appeal or direct action of nullity. The court overruled these exceptions.

Defendant answered, pleading the general issue. He admitted being in possession of the property described. He averred that he was the legal owner of the same by valid title, and that his authors held and owned the same by valid title. He averred that the sheriff’s sale which was the basis of their title was regularly ordered by a court of competent jurisdiction, but if any informality or irregularity grew out of same it had been prescribed against under article 3543 of the Civil Code, which he pleaded. He further pleaded, as against the plaintiff Adam Dou-cet, the prescription of five years provided for by article 3542 of the Code. 1-Ie further pleaded that since his purchase of the property he had improved same by placing buildings thereon to the extent of $3,000, and that he had paid taxes on said property approximating $600, and in the event of eviction he was entitled to recover for the same and to hold the property until he was reimbursed. He contingently prayed for judgment accordingly.

The district court rejected plaintiffs’ demand, and dismissed their suit, and they have appealed.

In his reasons for judgment the district judge said:

“Believing as I do that the property brought at the time a very good price; that the proceedings cannot be collaterally attacked.; that no family meeting was necessary, as the property was sold for cash; that the duty of the purchaser ended, when he found the sale was made in compliance with the law and the judgment and had paid the price of the adjudication; that all of the then minors are estopped, save one, by the receipt of the price; that all irregularities are prescribed by five years ; and that this is a speculative suit, liable to upset the title of many innocent purchasers — the demand of the plaintiffs should be rejected. The plaintiffs’ suit is a petitory one, brought on the theory and on the allegation that the proceedings under which their title is said to have been divested are absolute nullities. They had, at their risk, the right to bring a suit of that character. Beland v. Gebelin, 46 La. Ann. 330, 14 South. 843; Heirs of Ford v. Mills & Philips, 46 La. Ann. 337, 14 South. 845; Mays v. Witkowski, 46 La. Ann. 1480, 6 South. 478.”

If the nullities in the sale are absolute nullities as claimed, there was no necessity for a direct action to have been brought to set them aside, nor was there any necessity to make any one a party other than the person in possession of the property. In the Beland Case this court said-.

“There is no doubt as to the legal necessity under certain circumstances of bringing direct actions to annul judicial proceedings and decrees contradictorily with the parties legally interested in maintaining them as conditions precedent to relief asked; but the necessity for such direct action is contingent upon the issues which the plaintiff tenders. In a petitory action brought under ordinary conditions the only parties necessary originally to the action are the plaintiff, claiming ownership of property, and a defendant, in possession of the same. If the defendant deems it to his interest that his vendor, his lessor, or other parties, be brought into the proceedings, it is for him to take stops leading to that end.
“The plaintiff in this case had not cumulated with the petitory action proper actions of nullity against the various proceedings alluded to in the pleadings, and made parties accordingly, for the reason that the theory of his case is that all those proceedings are absolute nullities, needing no judicial action to set them aside; that they are void, not voidable. The allegations of the petition are to that effect.”

Tne same views are expressed in Heirs of Ford v. Mills & Philips, 46 La. Ann. 337, 14 South. 845, and Mays v. Witkowski, 46 La. Ann. 1480, 16 South. 478.

There is no necessity for our passing upon all the grounds; of nullity set up in plaintiffs’ petition. The conclusions which we have reached as to some of them relieve us from disposing of the others.

The matters which have specially arrested our attention are the commission to sell which was directed to the sheriff in these proceedings and the acts of the sheriff before and after he had received the same, up to and including the sale. The property whose sale was prayed for by the two major heirs of Doucet was described in their petition as the “northwest quarter of section twenty-nine, township eight south, range one west.” The district court ordered that property in entirety to be sold at public auction. The commission to the sheriff, however, authorized and directed him to sell the “southwest,” instead of the “northwest,” quarter of section 29, township 8 south, range 1 west. The sheriff offered for sale, and sold, first, the “east half” of the “northwest” quarter of section 29, township 8 south, range 1 west, to W. W. Duson, and, having done so, then the “west half” of the “northwest” quarter of section 29, township 8 south, range 1 west, to the curator of Mrs. Gelima Doucet.

The commission to the sheriff to sell was dated on the 11th of August, 1894, and directed him to sell the property described for cash according to law to the last and highest bidder on the 11th of August, 1894. The sheriff made the sale on that day, and in his pro-cés verbal he declared that he made the sale after having advertised the same for 30 full days.

The advertisement so referred to was made by the sheriff prior to his having any commission to sell in his hands. I-Ie made no advertisement after he received it. When the sheriff did sell, he departed without any authority whatever from the method of sale ordered by the court and the commission. He had no authority to separate the property, which had been declared “not divisible in kind,” into two halves, selling one half to W. W. Duson, and the other half to the curator of the widow. Such action (as declared in Landreaux v. Foley, 13 La. Ann. 116) is not a question of an observance of legal formalities for divesting title of a forced sale, but of a sale of one thing under color of an order to sell another. The syllabus of that case declares that:

“A sheriff’s sale is radically null where the land conveyed by the sheriff does not comui'T' with the order of seiv.””' boundary.”

To the same effect is Danneel v. Klein, 47 La. Ann. 928, 17 South. 466, and Ford’s Heirs v. Mills, 46 La. Ann. 338, 14 South. 845.

In the former of these two cases the court said:

“The sheriff deviated from the terms of the writ which constituted for him his sole and only guide.”

We are of the opinion.that the sales made by the sheriff were absolutely null and void, and the interest of the plaintiff in the property described in the petition remains unaffected by these sales, with fruits and revenues thereon from judicial demand.

We are of opinion that the prescriptions pleaded have no application in the present case.

Defendants contend that, whatever defects there may have been in the sales, they have been cured by the receipt by the plaintiffs of their proportion of the price; that they are estopped by acquiescence and ratification. Plaintiffs urged, on the contrary, that they were ignorant of the nullities in the proceedings when they received the money, and that under article 2272 of the Civil Code they are not estopped, as they did not announce their intention of curing the defects on which the action is based. They rely upon the decisions of this court in Carmena v. Blaney, 16 La. Ann. 245; Copeland v. Mickie, 17 La. 293; McCarty v. Straus, 21 La. Ann. 593; Woolfolk v. Woolfolk, 30 La. Ann. 139; Hamilton v. Hodges, 30 La. Ann. 1290; Breaux v. Sarvoie, 39 La. Ann. 243, 1 South. 614; Rist v. Hartner, 44 L. Ann. 378, 10 South. 760; Succ. of Troxler, 46 La. Ann. 748, 15 South. 153.

We think that plaintiffs’ position on that subject is correct. Defendant claims that he is a purchaser in good faith and that he is entitled to reimbursement for taxes paid by him and improvements placed by him on the property. We are of the opinion that he is a purchaser in good faith and also entitled to reimbursement according to law for taxes paid and for his improvements. The trial court did not pass upon his claims in that respect, and we do not find the record in condition to enable us to do so.

For the reasons herein assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be and the same is hereby annulled, avoided, and reversed. It is further ordered, adjudged, and decreed that there be judgment in favor of the plaintiffs and against the defendant recognizing and decreeing the former to be the owners of the interest which they assert in their petition in the property therein described, and entitled to fruits and revenues thereon from judicial demand. It is further ordered and decreed that the defendant was a purchaser in good faith of the property he purchased, and is entitled to reimbursement according to law for the taxes paid by him on said property and for the improvements placed thereon by him. It is further ordered and decreed that this cause be remanded to the district court, and reinstated, for further proceedings according to law; costs of both courts to be paid by the defendant.

On Rehearing.

MONROE, J.

Recapitulating, briefly, the main facts of this case: In May, 1894, Ermance Doucet (wife of Eli Ledoux) and Marie Doucet (wife of Jean N. Simon), daughters of Achille Doucet, deceased, brought suit against their mother, who was insane, and against their' four brothers, who were minors, for the partition of a quarter section (161.22 acres) of land (being the N. W. % of section 29, township 8 S., range 1 W.) in the parish of Acadia, which they alleged was indivisible in kind and should be sold. - At their instance William Reed was appointed curator ad hoc, to represent the mother, and Rudolph Reed was appointed to represent the minors, and on confirmation of default there was judgment (June 25, 1894) decreeing that the property was not susceptible of division in kind and ordering that it be sold at public auction for cash as to the interest of the major co-owners, and on terms to be fixed by a family meeting as to the interest of the minors. It was further ordered that a family meeting be convened, and that E. W. Lyons, sheriff, be appointed “receiver” to make the sale and distribute the proceeds. A family meeting (or what is said to have been a family meeting) composed of the two curators (who had been appointed to represent the mother and the minors, respectively) and three other persons, was accordingly held, and recommended that the property be sold for cash.

On August 11th, following, a commission was issued to the sheriff, reading:

“By virtue of a judgment of the * * * district court, and in pursuance of the recommendation of a family meeting * * * in the interest of the minors, * * * you are hereby authorized and commissioned to sell, for cash, according to law, to the highest bidder, at the principal front door of the courthouse, on Saturday, August 11, 1894, the following described property, * * * to wit: The southwest quarter of section 29, * * * containing 161.21 acres. * * * ”

The sheriff’s return, made on the same day, reads in part as follows, to wit:

“I proceeded * * * to make said sale * * * by first reading the aforesaid commission, as, also the advertisement of the sale * * * contained in the Orowley Signal newspaper for 80 full days, and by announcing the terms and conditions of sale, to wit, cash, and also had said property duly appraised by two disinterested appraisers, chosen by plaintiffs and defendants in suit, whereupon I proceeded to sell and adjudicate said property to the persons below named, they being the last and highest bidders therefor, on said terms, to wit: (1) The west half of the N. W. quarter of section 29, * * * containing 80.61 acres, * * * to William Duson, for the price and sum of $750. [Signed] W. W. Duson. (2) The east half of the aforesaid section * * * to Mrs. Celima Reed, widow, through her curator, Rudolph Reed, for * * * $300.
his
“[Signed] Rudolph X Reed.”
mark

Thereafter, on August 21st, plaintiffs presented a petition to the clerk of the court, alleging that, when the family meeting was held, no undertutor had been appointed to the minors, and praying that Jean N. Simon (who was the husband of one of the plaintiffs) be appointed, and an order to that effect was made, which was followed by the filing of a petition, in the name of the under-tutor, for the homologation of the proceedings, and an order of homologation was made by the clerk, as of date July 5th, nunc pro. tunc.

In October, 1906, the minors, who had then attained majority (with the exception of Dominique, who became a major soon after-wards), brought this suit against Michael Eenelon, as the party in possession, for the recovery of their original interest in a portion of the tract in question (which portion is described as the whole of block 4, containing 14 lots; lots 1, 2, 3, 4, 5, 6, 9, 10, 11, and 12, of block 5; the whole of block 10, containing 16 lots, numbered from 1 to 16; lots 2, 3, 4, 5, and 6, of block 12; and lots 9, 10, 11, 12, 13, and 14, of block 3- — all in the town of Iota), praying that the proceedings leading up to and including the partition sale be decreed null, and that they be recognized as the owners, in the proportions of one-sixth of one-half, each, of the property described. The grounds of attack and defense are fully set forth in the opinion heretofore handed down, in which it was held that, upon the theory of the absolute nullity of the proceedings resulting in the sale of the property, it is competent for plaintiff to sue for its recovery by means of a petitory action (of course, against the party in possession), without any previous action to have the nullity of these proceedings declared; that plaintiffs are not estopped to bring such petitory action; that the prescription of five years, relied on by defendant, is inapplicable. It was further held that plaintiffs’ theory as to the nullity of' the sale by which their title is said to have been devested is sustained by the facts; that, whilst suit was brought for the partition, by licitation, of the whole of the northwest quarter, the commission to the sheriff ordered him to sell the southwest quarter, of section 29; that said commission issued only on the day of the sale, and hence that, in advertising the property during the preceding 30 days, the sheriff acted without authority; that, under a judgment decreeing the sale of one quarter section, and a commission ordering the sale of another (but in either case contemplating the sale of the whole tract at one and the same time, as property that was not susceptible of division in kind), the sheriff made the sale in two lots, selling the west half of the tract to one buyer and the east half to another, and that such sales were unauthorized. It is now said that the case has been decided upon a point never tendered by the pleadings, and never argued in either court.'

The petition alleges that Mesdames Ledoux and Simon instituted suit, alleging that the property described (N. W. % of section 29, township 8 S., range 1 W.) “was not susceptible of division in kind and that they desired to have a partition by licitation of said property, * * * and reserved their right to have the family meeting convoked to fix and determine the terms of sale * * * in so far as said minors were concerned; * * • that, by judgment rendered June 25, 1894, * * * the court decreed a partition sale, for cash, as demanded, for the interest of plaintiffs, at public auction, after legal advertisement, and, as to the interests of said minors in said property, decreed that it be sold on such terms as might be fixed by the family meeting to be held in the interest of said minors, * * * and decreeing the appointment of E. W. Lyons, sheriff, to make the partition sale and to distribute the proceeds of sale, as receiver, etc.; that on the 5th day of July, 1894, the following persons * * * assembled * * * recommended that the interest in said land of your petitioners, who were then minors, be sold for cash; * * * that your petitioners had no under-tutor when said family meeting was held; * * * that the proceedings of the so-called family meeting were filed July 5, 1894, and that in a petition filed August 21, 1894, by * * * the attorney who instituted the original proceedings for said partition, * * * it was alleged that at the time said family meeting was held said minors * * * had no undertutor, wherefore it was prayed that Jean Simon, the husband of Marie Doucet [one of the plaintiffs in said proceeding] be appointed undertutor, * * * and that, on said 21st day of August, 1894, the said R. T. Clark, clerk of the court * * * appointed the said Jean N. Simon undertutor; * * * that, by petition filed in the name of the un-dertutor, * * * the undertutor prayed that the proceedings of said family meeting be approved and homologated, and the clerk of the court did approve and homologate same, nunc pro tunc, dating the order and filing July 5, 1894, * * * thus antedating the petition for the appointment and the order appointing Jean N. Simon undertutor; * * * that on the 11th day of August, 1894, a commission was issued to said sheriff * * * authorizing him to sell the S. W. ]4 of section 29, township 8 S., range 1 W., containing 161.21 acres, and that on the same day he adjudicated the following described property, to wit: First: The W. % of the N. E. of section 29 * * * to William W. Duson, for * * * $750; second, the E. % of the aforesaid section, same township and range, * * * adjudicated to Mrs. Celima Reed, widow, through her curator ad hoc, Rudolph Reed, for * * * $300. * ♦ * Tour petitioners now represent that the proceedings leading up to and including the proceed-the sale made of the property above described, ings of the so-called family meeting, and also are absolutely null and void, and are patent upon tbe face of tbe record, for the allegations and reasons hereinaVove made, and in tbe particulars and for tbe reasons following, to wit [italics by tbe court].” And then follow certain specifications, in wbicb some of tbe allegations, including that to tbe effect that “tbe commission to a sheriff to make the sale was issued on tbe same day the sale was effected,” are repeated, whilst others, including the allegations that the judgment ordered the sale of one tract and tbe commission of another, and that the sheriff, acting-under said commission, made tbe sale in two lots, instead of selling tbe tract as a whole, are not repeated. There was, however, no necessity for such repetition, and, as plaintiffs distinctly state that the proceedings and also the sale, are absolutely null and void, and are patent upon tbe face of the record, “for tbe allegations and reasons hereinabove made and in the particulars and for the reasons following,” we are at a loss to understand how it can be asserted, and insisted upon, that the issues upon which the case was decided are not presented by the pleadings. It is true that the points in question were not specifically urged in the argument upon the original hearing in this court; but, whilst the silence of counsel may, in some cases, authorize the presumption that a particular ground of attack or defense, set up in the pleadings, has been abandoned, such presumption can hardly be enforced, juris et de jure, or where, as in the present case, it becomes reasonably apparent that the intention to abandon never existed.

In our re-examination of the case we have failed to discover any reason for doubting the soundness of the proposition that a sale made by a sheriff without the authority of a judgment and writ or commission from a competent court is a nullity. The argument that the sheriff, being authorized by the judgment in the proceedings which are here attacked to sell the entire property, needed no writ or commission, and that his making the sale in two lots was a mere informality, is in the nature of petitio principii, since it assumes that his authority to sell proceeded directly from the judgment and included the authority to divide the single tract of land, the sale of which was decreed, into as many parts as he thought proper. The judgment in question was not, however, under the control of the sheriff, and he had no more right to execute it of his own motion than he would have had to execute any other judgment, or an order of seizure and sale upon which no writ had been issued; nor did he assume to do so. On the contrary, his proces verbal recites that he acted under the commission. Again, the judgment in question decreed the sale of the N. W. % of section 29, being a single tract of land, containing 161.22 acres, and the commission authorized the sheriff to sell the S. W. % of section 29, containing 161.21 acres, and, whether under the judgment or the commission, he had no more authority to sell, first the west half, and then the east half, of the tract, than he had to sell the tract, by separate adjudications, in lots of one acre each; nor was there any one in a position to disregard the mandate of the court and confer such authority on him. Succession of Bright, 38 La. Ann. 141. See, also, Landreaux v. Foley, 13 La. Ann. 116; Danneel v. Klein, 47 La. Ann. 980, 17 South. 466, cited in the original opinion.

It may be conceded, we think, that, where minors are sued for the partition of property which is shown to be indivisible in kind, the judge may order it to be sold, for cash, without the advice of a family meeting, and without regard to the appraisement; the case of a licitation provoked by a co-heir and a co-proprietor being an exception to the general rule that the property of a minor can be sold only upon the advice of a family meeting and for its appraised value. Civ. Code, arts. 345, 1314; Jacobs et al. v. Lewis’ Heirs, 8 La. 177; Shaffet v. Jackson, 14 La. Ann. 154; Life Associations of America v. Hall, 33 La. Ann. 52; Bayhi v. Bayhi, 35 La. Ann. 530; Crawford v. Binion, 46 La. Ann. 1266, 15 South. 693; Johnson v. Barkley, 47 La. Ann. 99, 16 South. 659. It is, however, the province of the judgment, ordering the sale to effect a partition, to fix the terms. Civ. Code, art. 1341, 1342, 1345; and, in the case here in question, that was not done, since the sale was ordered to be made for cash as to the interest of the plaintiffs, who were majors, and on terms to be fixed by a family meeting as to the interest of the defendants, who were minors, and no family meeting, within the meaning of the law, was ever held, so that, quoad the interest of the minors, the terms of sale were never fixed. The family meeting, as held, was illegal because (among other things) the minors were not represented by an undertutor, and that defect was not cured by tbe subsequent appointment of the husband of one of the major plaintiffs in the suit to that position and the homologation, nunc pro tunc, of the proceedings at his instance. Civ. Code, art. 276; Succession of Marinovich, 105 La. 106, 29 South. 500; Succession of Aguillard, 13 La. Ann. 97. Counsel for defendants insist upon the application of the prescription established by Civ. Code, art. 3543, which declares that:

“All informalities connected with, or growing out of any public sale * * * shall be prescribed against * * * after the lapse of five years, * * * whether against minors, married women, or interdicted persons.”

And they argue that:

“Any substantial omissions of legal duty, misconduct, or irregularity of an officer connected with the process, for which the sale might be held invalid, is an informality.”

The excerpt (from Words and Phrases Judicially Interpreted, vol. 4, p. 3584) relied on, and as given in the brief of the counsel, does not, however, support their proposition; the doctrine therein stated being that “within the meaning of a statute” entitling a tax purchaser, whose title has been declared null for informalities in the proceedings leading to the sare, to recover the price paid by him, any substantial omission is an informality,” which is quite different from the proposition that, within the meaning of the statute prescribing against informalities, the nullity of a judicial sale, resulting from lack of authority in the officer making it, is a mere informality. In. the case from which the excerpt is taken the court apparently held that, as the greater includes the less, so, if the price could be recovered where the title was found to be invalid by reason of informality in the proceedings, it could be recovered where the invalidity arose from something more serious. That argument, does not, however, tend to the conclusion that the less includes the greater, and that, because an attack upon a public sale, based upon informalities, is barred by the prescription of five years, therefore all attacks, including those based upon want of authority in the officer making the sale, are so barred. The question thus suggested was considered in a case in which a sale was attacked on the grounds that property in which minors were interested had been sold, some 20 years before, below its appraised value, and had been adjudicated to the tutrix, and that no under-tutor attended the family meeting by which the sale was advised, and our predecessors in this court said:

“The only question, then, is whether the prescription relied on extends to, and covers, such absolute nullities as those which exist in the sale to Pipkin’s widow, under which the defendant holds. The provision of law creating this prescription is the fourth section of an act entitled ‘An act relative to advertisements.’ Upon an attentive perusal of the whole law, it is difficult to believe that the expressions ‘all in-formalities connected with, or growing out of, any public sale,’ etc., were ever intended to embrace all kinds of illegalities or nullities whatever. They must, we think, be understood as applying to the omissions of such formalities as relate to the manner, time, and pláce of making the advertisements required by law for all public sales. The counsel for the defendant has contended that this prescription extends to all causes of'nullity and to all illegalities which are within the provisions of the monition law, passed and approved on the same day. The terms of the two laws are widely different, and show that they were not intended to apply to the same objects. The monition law expressly mentions ‘all defects whatsoever and every informality in the order, decree, or judgment of the court, under which the sale was made, or any irregularity or illegality in the appraisement or advertisement, in time and manner of sale.’ Instead of these broad and comprehensive terms, the law relied on speaks only of informal-ities, and that, in connection with provisions of law relating exclusively to the advertisements required for public sales. An informality implies, to be sure, an illegality, because all formalities are prescribed by law; but a sale of a minor’s property may be illegal and null, although clothed with all the formalities required by law. This may happen, as in the present case, when the property is sold below its appraised value, or where it is adjudicated to a tutor or any other person who cannot legally purchase. Such nullities have nothing to do with the formalities required by law for the public sale of the property. They result from a violation of a prohibitory law.” Morton v. Reynolds, 4 Rob. 28.

Again, it was said:

“As to the prescription of five years, established by the act of 1834 [re-enacted in 1855 (Rev. St. p. 22, § 4; Rev. St. 1870, § 2809)] we have heretofore held, and have no reason to doubt the correctness of our determination, that it covers only informalities occurring in the manner of advertising and making public sales.” McCluskey v. Webb, 4 Rob. 206.

And again:

“The prescription of five years has been pleaded under the act of 1834, re-enacted in 1855, curing the informalities growing out of public sales. Philips, Dig. p. 22, § 4. We are of opinion that this statute does not cure the total want of authority to sell, but merely irregularities and informalities in the execution of the decree or other sufficient authority to sell.” Robert v. Brown, 14 La. Ann. 598.

See, also, Foster v. Roussel, 3 La. Ann. 546; Riddell v. Ebinger, 6 La. Ann. 407; Brooks v. Wortman 22 La. Ann. 492; Burns v. Van Loan, 29 La. Ann. 563; Fraser v. Zylicz, 29 La. Ann. 537.

Applying the doctrine of the cited eases to the facts here presented, we adhere to the view, expressed in the original opinion, that the prescription, established by Civ. Code, art. 3543, against attacks based on information, does not bar this action, because the terms of the sale here attacked, quoad the interest of the minors, were not fixed by the order of sale, or as contemplated by that order, and because the order contemplated the sale of the tract of land which was the subject of the partition as a whole, and hence that the sheriff, in selling the interest of the minors for cash, and in selling the tract in two parcels, by separate adjudications, acted without authority.

As against the plaintiff Adam Doucet, counsel for defendant also urge the prescription established by Civ. Code, art. 3542. The evidence shows that at the date of the institution of the suit (October, 1906) Adam Doucet was, say, 29 years old, from which it follows that he must have attained his majority in 1898, and must, thereafter, have allowed more than five years to elapse before attacking the sale, which had been made in 1894. The prescription established by Civ. Code, art. 3543, as we have noted, runs against minors as well as majors, but only as to informalities in the advertisement and manner of making public sales. The prescription established by Civ. Code, art. 3542, on the other hand, runs only against majors; but it applies to actions for the rescission of partitions, based upon any alleged nullity that might be ratified. The distinction between nullities which are susceptible of ratification and those which are not has been stated by this court as follows, to wit:

“If the contract is tainted with a nullity resting on motives of public order, or having its origin in the respect due to good morals, if it be prohibited by article 11 of the Code, it is an absolute nullity, to which the law perpetually resists. It is not susceptible of ratification; and the prescription of five years is inapplicable to it. * * * The other class of absolute null-ities is those established for the interest of ini dividuals, and in relation to those the rule, in onerous contracts, is, -without exception, that the party in whose favor they are established may render valid the acts in which they are found by his ratification, express or implied. Toullier cites, as one of the absolute nullities of this class, the very case relied on by intervener’s counsel — the sale of the immovables of the min- or by his tutor. That sale, he says, is absolutely null, and yet the minor, after he becomes of age, may ratify it, not only expressly, but tacitly. * * * In all executed contracts, which, under this view of the law, may be tacitly ratified, a presumption juris et de jure of ratification results from silence and. inaction during the time fixed for prescription.” Vaughan v. Christine, 3 La. Ann. 328.

In a later case the plaintiffs sued to annul a partition made during their minority, and also to annul a subsequent transfer of the property, alleging that the proceedings were illegal and fraudulent. It was held (quoting the syllabus) that:

“The prescription of five years bars an action to rescind a partition.' The prescription runs from the majority of minors becoming of age, or from their full emancipation.” Sewall v. Hebert, 37 La. Ann. 155.

See, also, Cox v. Lea’s Heirs, 110 La. 1036, 35 South. 275.

We are, therefore, of opinion that, as to Adam Doueet, the plea of prescription, as founded on Civ. Code, art. 3542, should be sustained. As to the other plaintiffs the prescription is inapplicable, as the suit was instituted within five years after Joseph and Leon, and before Dominique, attained majority. The plea of estoppel by express ratification (i. e., by receipt of the price of the property sold) has no application whatever to Dominique, who was still a minor when this suit was brought (though he is now a major), and who has received nothing; and it is equally inapplicable to Joseph (or Der-bus), who was paid what was said to be his proportion of the price of the property during his minority. As to Leon, it is not -shown whether he was paid during his minority or afterwards; nor is it shown that he received the money with the intention of ratifying the sale. And no tacit approval or ratification of an act or contract is recognized, except that which results from the fact of suffering the time to elapse within which the rescissory action may be exercised. Copeland v. Mickie et al., 17 La. 286; McCarty v. Straus et al., 21 La. Ann. 592; Breaux v. Sarvoie, 39 La. Ann. 243, 1 South. 614.

It is therefore ordered, adjudged, and decreed that the judgment heretofore rendered in this case be amended by maintaining the plea of prescription, under Civ. Code, art. 3542, as against the demand of the plaintiff Adam Doueet, and, as amended, that said judgment be reinstated and made the final judgment of the court.  