
    No. 2489.
    Sophia Peters, Administratrix and Tutrix v. George Spitzfaden et al.
    A judgment declaring a sale of property under execution a nullity, is not res judicata as to the purchaser who was not a party to the suit. The purchaser is therefore legally entitled to the rents of such property until his title is declared, null and void by judicial proceedings to which he is a party.
    Appeals from the Seventh District Court, parish of Orleans. Oollens, J.
    
      Hyman, Wallace dt Handlin, for plaintiff ancl appellant. Henry O. Miller, for defendants and appellees.
   Ludeling, C. J.

The plaintiff sues Spitzfaden and the sheriff, Bienvenue, and his sureties for the rents of certain property, possessed and occupied by Spitzfaden from 1865 to 1869, alleging that the property belongs to the succession of A. Peters and her minor-children.

Prom the record, it appears, that on the twenty-eighth day of October, 1865, George Spitzfaden bought at sheriff’s sale made under an execution against Sophia Peters, the right, title and interest of Sophia Peters in and to a certain lot, situated at the corner of Eighth and Annunciation streets, in the city of New Orleans. That, on the twentieth of June, 1869, this sale was decreed to he a nullity, in a suit between Sophia Peters, tutrix, v. Catherine Frelinghouse, Peter Bunger and the sheriff.

It is admitted in evidence that the lot in question had been acquired, by A. Peters, the husband of Sophia Peters, during the existence of the community, and that A. Peters died in 1861.

Prom these facts /e deduce the following conclusions: that the judgment rendered in the suit between Sopbia Peters, tutrix, v. Catherine Frelinghouse, Peter Bunger, and the sheriff, is not res judicata as to George Spitzfaden, the purchaser of the property, who was not a party to that suit, and that George Spitzfaden had the right to collect the half of the rents of the property until his title to the undivided half interest in and to said property shall have been declared null, in a contest in which he is a party. There is no evidence in this record to authorize us to declare the nullity of his title, nor is the nullity prayed for in this suit. Spitzfaden bought the interest of the widow-in community in and to certain community property under an execu tion issued ou a judgment against her.

There is nothing in the record before us to show that there was any other community property, or any community debts.

It is therefore ordered and adjudged, that the judgment of the district court be set aside, and that there be judgment against the plaintiff as in case of nonsuit, with costs in both courts.

Rehearing refused.  