
    Delassus v. Roumage et al., Executors.
    Whore, subsequently to an act of sale of lands, the parties declare in aseparate act that the reai consideration of the sale was a debt due by the vendor to the vendee, and stipulate that the vendor shall he allowed to sell any part ,of the lands the sale of which may be approved by an agent of the creditor, and that the credttor shall reconvey to the debtor any lands that it may not b.e necessary to sell in order to pay the debt, and the creditor dies: Held, that no action will lie against the executors of the deceased to compel them to appoint an agent by whom the sale of the lands maybe approved; that they have no authority to dispose of the property of the deceased at private sale, such an .act not being one of administration ; and that the heirs of the deceased are the proper persons with whom to contest the propriety of appointing such an agent.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    
    
      Delavigne, for the appellant.
    
      Eyma and Pitot, for the defendants.
   The judgment of the court was pronounced by

King, J.

Delassus, by an pet passed in 1843, conveyed all his lands in the State of Missouri to Maearty. The consideration expressed in the deed was 3540,000, On the 10th Febrpary, 1846, a second transfer of the same lands was made to Maearty by a more definite description of the tracts, and of the titles under which they were held. On the 1st May, 1846, a third act was executed between the parties, in which it was declared, that the real consideration of the sale was an indebtedness of 35126,794 69 with interest, due by Delassus to Maearty, for which sum a judgment by confession was rendered in favor of Maearty. Mficarty stipulates in this last act, if the amount of the judgment should be paid to him by the partial sale of the lands or otherwise, to reconvey to Delassus such of the lands as should not have been sold to satisfy his judgment. Delassus was to be permitted to go to Missouri, for the purpose of effecting such sales of the lands as should be approved by Macarty’s agent in that State. Macarty, however, reserved to himself the right of selling any part of the lands, not under the mai'li'et price, on such terms and conditions as he thought fit, for the purpose of paying his judgment, binding himself to reconvey thelp-esidue only, if any should remain. After Macarty’s death, Delassus presented a petition to the District Court, in which he avers that, he is ready to proceed to the State of Missouri, for the purpose of effecting sales of the lands in accordance with the stipulations of the act between himself and the deceased ; and that he has called upon, the execptors to appoint an agent in Missouri, to approve of such sales, but that the executors declined naming an agent. He concludes with a prayer that the executors be ordered to appoint an agent, to cany into effect the' purposes of the act. The executors assumed that they were without authority, either by the will or by law, to appoint an agent for the purpose of disposing of property of .the deceased by private sale. They prayed that the plaintiff’s demand should be diámissefi!; but, if the court considered that an agent ouglit to be'appointed; they asked that the heirs of the deceased should be made parties to the proceeding. The heirs were accordingly cited through their representatives. The tutor of the minorheirs made no specific objection to the application, but submitted the question to the decision of the court. The other heir opposed the application, and averred that the right of selling the lands resided in the heirs alone, who were not'bound to consult the plaintiff iu relation to such sales. The cause was tried as between the plaintiff and the executors alone. The district judge dismissed the suit as against the executors, and ordered it to proceed against the heirs; and from this judgment the plaintiff has appealed. In our opinion there is no error in the judgment appealed from. The executors were clearly without authority to appoint an agent to dispose of property of the deceased at private sale. The act which the executors are called on to perform, is not one of administration. The proper parties' with whom to*contest the propriety of appointing such an agent, are ,now before the court; as between them and the plaintiff the action is still pending. We do not consider the question before us, as ter the right of the plaintiff to maintain his action against the heirs.

Judgment affirmed.-  