
    
      RAGUET'S HEIRS vs. BARRON.
    
    Appeal from the court of probates of the r parish and city of New Orleans.
    . a minor, un-eSstingfaw” might be
   Porté*, J.

delivered the opinion of the court. The defendant purchased property at the sale of the estate of the ancestor of the plaintiffs. The term of the sale were one and two years credit in notes satisfactorily indorsed, with special mortgage until final payment

Having failed to comply with'his agreemfen á rule was taken on him to shew cause why he sh°u^ not he compelled to perfornj it, to which he answered, that the family meeting, in virtue oj- ^Qgg deliberations the property had been directed to 80]^⅜ was composed of relations whahad an interest in the matter on which they decided; that the sale was, consequently, made without the legal formalities, and the tide to the respondent defective.

The court confirmed by its decree the ’correctness of the defence, and the plaintifis appealed.

Before noticing the merits, ah objection made by the plaintifis must be disposed of They con- / fend the court of probates had no jurisdiction of the matter; that it was through error they went there ; and, that the defect being one ration# materioe, consent cannot'cure it

We think the plaintifis were right in their first opinion on this subject, and wrong in their second. The court of probates has jurisdiction to compel purchasers to make their contract complete by affixing their signatures and giving their note. The plaintiffs have argued this point as if the defendant had accepted the title, given his obligations, and that this was an action to enforce their payment, when the application is merely to make the contract, which was inchoate by the bidding, complete by executing the writings necessary to render it so.—

The court having power to order the sale, has, as a necessary incident, the power to make these sales in a legal manner.

The family meeting was composed, in part’ of co-heirs of the minor; and it is contended, that as they were joint proprietors with her, they could not legally deliberate and decide oft Ae propriety of selling the property.

This case arose previous to the late act of Ae legislature on this subject, and must be decided by the law as it then stood. '

That law contained no positive provision 'which excluded Ae nearest relations who are joint owners with the minor. But the appel-lee contends there exists one in the reason of Ae thing; that those who have an interest in Ae property cannot he impartial judges of the propriety of selling it, because their opinion must be more or less influenced by the consideration of Ae effect the sale will have on their own interests.

We were struck on the argument with the force of the objection, but our reflections since, have much weakened Ae influence we were at first disposed to give it The law having declared that heirs either mayor, or minor, can-J 'not becompelled to remain owners In com* mon it follow's they cannot be influenced by the desire to retard or hasten the partition, for they have no power oyer it. In the manner itt which the partition should be made they seem to be equally without aft avderse interest to'the minor, for if that property is to be divided in kind, whatever influence the division may have on a portion of the property partaken it will have on the other, more particularly as the lots must be drawn for, and chance decides to which of the heirs each lot must fall. If on the contrary it is to be sold together, all would share alike in the profit or the loss arising from the sale. There is then no conceivable interest intheheirs of full agegiving false and pernicious advice except that suggested by counsel in the written argument, that being owners in part, heymight’be anxiousto sell because they could buy to more advantage than strangers, who would be obliged to furnish the whole price of the property, while they would only have to pay tha t portion of which they were not owners. But the interest is so remote and uncertain, where the sale is to be made on credit, %at we cannot, on that ground, pronounce the incompeteney of the co-heirs to form á family . meeting.

The late act of the legislature, excluding persons such as those who formed the family meeting in this instance, strengthens this conclusion. If the law, previous to its'passage, was as it is contended by the appellee, the act was vain and unnecessary. It is true that the introduction of a provision by statute in this country, is not, as has been properly urged, conclusive evidence that the law, previous to the enactment, was otherwise, but in doubtful cases it creates a presumption it was so, and the weight which properly belongs to the presumption, cannot be’ disregarded by a court of justice.

- It is therefore ordered, adjudged, and decreed that the judgment of the district court be annulled, avoided and reversed: And it is further ordered, adjudged-, and decreed, that the defendant do, within ten days from the rendition of this judgment, comply with the contract entered into by him in bidding for the property at the sale of the estate of the ancestors of the plaintiffs, or, that in default thereof, a writ of destringas issue to compel him there» to; and it is further ordered, that he pay costs . r J in both courts.

Seghers for the plaintiffs,Pierce for the defendant,  