
    No. 8491.
    Andrew J. Keenan vs. Widow and Heirs of C. Ahern.
    The appointment of a curator to represent minors, is not vitiated by improperly styling him “ curator ad hoc and special tutor.1’
    Where the attorney, himself ih party to the suit, acts as the appraiser for said party, the sale cannot bo attacked on the ground that he was nob sworn.
    Where an order of sale specifies no terms of credit, but only requires the purchaser to assume the payment of certain mortgage notes already past due, the sheriff did not depart from the terms fixed in the order, by advertising and selling for cash, at least in absence of any showing that the no les had been extended.
    APPEAL from the Civil District Court for the Parish of Orleans. liiyhtor, J.
    
      1. Timony, for Plaintiff and Appellant:
    1. A sale for cash and a sale with the condition of assuming notes past due, are identical.
    
      % If a defendant in.execution appoint an appraiser who acts and neglects, or evades being sworn, he will nob he permitted to take advantage of his own neglect or delinquency.
    
      T. Gilmore & Sons, for Defendants and Appellees :
    1. Where the purchaser of property sold under executory process to pay vendors' mortgage has complied with the terms of sale and paid the price, which has been applied in extinguishment of the mortgage taxes and costs, his title cannot be attacked by the widow in community who has subsequently qualified as tutrix without a previous tender to him of the amount he has paid. Brown vs. Bonny, 30 An. 374 ; Barrett vs. New Orleans, 13 An. 107; 24 An. 324.
    
      ii, A misnomer in the maiden name of a married woman — the widow in community — placed in parenthesis, and the designation as special tutor of a curator ad hoc, as in the words “ curator ad hoc and special tutor," will ho treated as surplusage and furnish no grounds for nullity of salo. C P. Arts. 116, 194, 395, 964, Bienvemi vs. Dactors’ and Traders’Ins. Co , 33 An. 209 ; Monition of Hall, 21 An. 693.
    3. A defendant will not be heard to attack a sale on the ground that her attorney, who acted as appraiser and attended the sale, was not sworn as appraiser. Mullan vs. Pollain, 12 An. .*38 ; Bemudez vs. Union Bank, 21 An. 64; Nichols vs. Mercicr, 15 An. 374.
    4. A creditor holding one of a series of notes described in an act of mortgage has a right to demand the sale of the proper) y on such terras as are granted to the debtor in the act for the payment of such instalments of the mortgage as are not d/ue. When it appears from the not of mortgage that these terms of credit have expired and the whole debtis past due, the sheriff is at liberty to proceed to a sale for cash. C. I5 , 686; 1 Rob. 224; 11 An. 182 ; 16 La. 173, Pepper ve. Dunlap.; 6 Rob. 461; 9 Rob. 73; 10 Rob. 49.
    
      5. The sheriff is bound to put the adjudicate© in possession of the property under the writ of seizure and sale — and the defendant’s appearance and defense to a rule for that purpose is conclusive on her if not appealed from — aud she cannot reiterate the sime objections as grounds for injunction. DePoret vs. Gusman, 33 An. p. 338; Porter vs. Morere, 30 An. 231-2; Winn vs. Elgee, 6 Rob. 100; Paul vs. Hoss, 28 An. 855; 20 An. 573.
    
      Wm. H. JPascoe, for Defendants and Appellees :
    1. In proceedings via cxecutiva the notice must be addressed to the defendant in his proper name. If the writ is issued, addressed and served in a different name, the service will b bad. A proceedingby which propertyis summarily seized and sold without citation is one of great severity, and the seizing creditor must bring himself within tbe letter of the law, and the formalties prescribed by law must be strictly complied with. C. P. Articles 179, 206; 19 An. 360, Bertoulrn vs. Bougoin; 6 R. 192, Lowry vs. Emin; 2 An. 212, 222, 270, 488, 552; 3 R. 94, Miller vs. Gaskin.
    
      % A service ma<le upon a “ curator ad hoc, and special tutor” appointed to represent minors, is bad, no such representative of minors being recognized under the laws of Louisiana. C. P. Arts. 116,194, 964 ; 13 An. 405, McDonald vs. Vaughn.
    3. To constitute a lawful appraisement of property seized under execution the appraisers must be sworn. A failure on the part of the sheriff to swear the appraisers is as if appraisement had been made. C. P., Arts. 673, 770; 17 L 76, Zaoharie vs. White; 2 M. 317, Bermudez vs. Iranez; 3 An. 546, Poster vs. Roussel; 28 An. 126, Drouet vs. Lacroix.
    4. Where the court has ordered the sale of property on terms of credit and the sheriff advertises and sells it for cash, the sale will be void for want of an order of sale. G. P. 686, 706 ; 29 An. 536; 31 An. 85 ; 15 An. 254, 285 ; 14 An. 153 ; 10 R. 49 ; 16 L. 163 ; 11 L. 72 ; 1 An. 279.
    5. Whereasale is an absolute nullity, and when defendant enjoins the purchaser from being put in possession for irregularities in the sale, he need not tender the price paid to the sheriff. 28 An. 126, Drouet vs. Lacroix; 26 An. 234, 249, 343 ; 24 An. 324; 29 An. 536; 30 An. 174.
    Also see recent decision by Justice Todd, Mrs. Caroline C. Gillespie et ais. vs. G. K. Gillespie et aU.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff, holding a note secured 'by mortgage and vendor’s lien, made by Cornelius Ahern, who was dead and whose succession had not been opened, foreclosed by executory process, directing Ms proceedings against tbe widow in community and the minor children, 'represented by a curator ad hoc, duly appointed for the purpose.

The proceeding now before us is taken by Mrs. Aliern, as widow in community and natural tutrix, to annul tbe sale made therein, on the following grounds:

1. Because no service was made upon her in her capacity as tutrix. She bad not qualified as tutrix till sometime after the service, and the minors were properly represented by a curator, who was duly served. C. P. 116.

2. Because the person appointed to represent the minors was styled curator ad hoc and special tutor.” The last words are to be treated as surplusage, and do not affect the capacity of the curator.

3. Because the service on her was not in her proper name. The notice was addressed to Lizzie Ahern,” (bom Katus) widow in community. The objection is that her maiden name was Keating,- and not Katus. Her maiden name was not essential, and the objection is frivolous.

4. Because no lawful appraisement was made, the sheriff having failed to swear the appraisers. The sheriff’s return shows that the appraisers were sworn. The attorney of the widow acted himself as her appraiser, and he testifies that he was not sworn. If not, his waiver of the oath was equivalent to her own, and cannot be invoked against the sale, bj1- her. 12 An. 838 ; 21 An. 64 ; 15 An. 374. There is nothing to contradict the sheriff’s return' that the other appraisers were sworn.

5. Because the property was. advertised and sold for cash, instead of on terms prescribed in the order.

The order, substantially, was to sell for cash, to pay plaintiff, and the purchaser to assume certain other outstanding mortgage notes. The sheriff, finding that the notes referred to were all past due, construed the order according to the law, and conceived that it was equivalent to an order to sell for cash. The order must have meant either a sale for cash, or a sale on terms of credit. Certainly, there could be no terms of credit in an assumption to pay notes already due. The law only provides for such te.rmB of credit as are granted to the debtor by the original contract, for the payment of such instalments as are not yet due.” C. P. 686.

The law guaranteed to the purchaser the right to retain in his hands the portion of the price accruing to such outstanding mortgages. This right was secured to, and exercised by the purchaser, and that is all that could be meant by that portion of the order directing the assumption of mortgages already due. It could not signify any terms of credit.

In any event, the act of the widow, through her attorney, in taking part in the appraisement of the property, with full knowledge of the proposed mode of sale, and her omission to make any objections prior to the sale, and the presence of attorney-at-law and in fact at the sale, preclude her present complaint. Nicholls vs. Mercier, 15 An. 374; Muller vs. Follain, 12 An. 838.

For these reasons, it is ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and it is now adjudged and decreed, that the injunction issued on the petition of Mrs. Ahern, widow and natural tutrix, be dissolved, and her demand rejected at her cost in both Courts.

Rehearing refused.

Levy, J., absent.  