
    No. 2080.
    Heirs of Wenderlin Doll v. James Kathman.
    A purchaser of property at judicial sale acquires an indefeasible title by complying with his hid. In case of an active violation of the contract of purchase by the purchaser, or in caso of open refusal to comply with his bid after demand., default is not necessary as a condition precedent to the action for the rescission of the sale and the recovery of damages. But if no demand has been made on the purchaser to comply with the terms of the sale, then, «and in that case a putting in default would seeni to be a condition precedent to recovery. *
    As a condition precedent to the action for the rescisión of contracts and the recovery of damages for the nonperformance of engagements, the putting of the party in mora is strictly required, and the default must he made certain.
    APPEAL from the Seventh District Court, parish of Orleans.
    
      Oollens, J. 0, Poselius and A. Philips, for plaintiffs and appellants.
    
      O. Schmidt and Fellows & Mills, for defendant and appellee.
   Taliaferro, J.

The plaintiffs sue to recover certain real estate in New Orleans, alleging the defendant is in the possession of it, and illegally withholds it from them. The defendant denies that the plaintiffs have any right to it, and sets up title to the property in himself, averring that he bought it at a probate sale of the su ccession of the plaintiffs' father, Wenderlin Doll. The judgment of the court a qua was in favor of the defendant. The suit was dismissed, reserving to the plaintiffs any right they may have to enforce the payment of the price at which the defendant bought the property. Plaintiffs have .appealed.

Prior to the institution of this suit and as far back as 1861, the •defendant, Kathman, brought a suit in the Second District Court of New Orleans against the administrator and heirs of Wenderlih Doll, who died in February, 1861, to obtain title to an undivided half part of various lots of ground and buildings thereon, the lot and buildings at the corner of Bienville and Marais streets, forming the object of tbe present controversy, alleging that at the time of the purchase by Doll ■of the property from Massey, he in fact acquired an interest in the pur■chase although the title was taken in Doll’s name, and that by an agreement between himself and Doll the latter was to make Kathman .•a .title upon the payment by him of $7500. He averred that by this agreement all the property which they owned in the Second District •of New Orleans was to remain under Katliman’s control and administration. That lie was charged no interest on the sum he agreed to pay Doll, and that he was to he credited with one-half the net revenues of the property as they were collected.

It seems Kathman had the property in dispute, as well as all the other property which he alleged was jointly owned by himself and Doll, in the Second District, from the early part of the year 1859, Doll having purchased from Massey in March of that year. This suit in the Second District Court was protracted for a great length of time. The administrator of Doll’s estate died an exception to the suit in May, 1804, and in January, I860, the hoirs of Doll answered, denying any right in Kathman to claim what he demanded, and set up a reconwentional demand against him for largo sums alleged to have been •collected by him in rents and revenues of the property in his possession, and which were unaccounted for. In May, 1866, this suit was dismissed b.y order of the court. In November following, upon a rule •to have the case reinstated on the docket, the rule on exception by the offering counsel was discharged. Here, this branch of the litigation between the parties seems to have ended

In January, 1862, the property of Wenderlin Doll’s succession war ■sold .at public sale, and Kathman bought the property for which he h ■sued In the present action. The price was $8009, one-third cash, th - remainder in one and two years, with mortgage retained, and interest at eight per cent, from date.

The defendant, it is charged, has never paid any part of the price o: the property, and it is not shown that he has. It is argued on the part of the plaintiffs, that never having paid for the property, he is not the •owner of it. It is not shown, however, that the heirs or any person authorized have ever made any demand of payment, or that the defendant has been put in default, a condition precedent to the right of the plaintiffs to recover. It was on this ground that the judgment of the district court was rendered, and the main question in this case is, whether from the facts shown, a formal putting in default was necessary. The rule we take to he well settled that where there are negative or passive breaches of contracts a default is necessary; but they are net necessary where positive breaches take place. This court in •the case of Washburne v. Green, 13 An. 333, an authority cited on be-half of the plaintiffs, laid down the doctrine that “ although article 3586 of the Civil Code declares that the adjudication completes the sale, yet, it was never the intention of the lawgiver to say this consequence should follow, and the sale should be complete where the purchaser had refused to comply with the terms of the sale on demand,, and liad been decreed by the judgment of a competent court to bo in default.” And in the same case the court said further: Tne purchaser at a judicial sale acquires such a vested right to the property by tho adjudication that itcannot.be divested and taken from him unless he refuses to comply with the terms of the sale. It is in his power by a compliance with the terms of the sale to become the owner by indefeasible title. It can not be taken from him. In this sense the adjudication is the completion of the sale. But if the purchaser-refuses to comply with the terms of the sale he is considered as never having been owner, saving' to the vendor his right to compel a specific performance of the contract.” Many decisions are to the same effect. There are among them 14 La. 588, 590; 5 L. R. 472; 15 La. 398 ; 2-An. 361; 14 An. 449.

In the case at bar, as we have before remarked, we are not shown that the defendant lias ever been applied to amicably or by judicial demand to comply with the terms of the adjudication. How then can it be said that he ever refused to comply ? Por the plaintiffs it is responded that the law is satisfied by any evidence which indicates an intention not to comply with tho adjudication, it is argued that Katliman was guilty of an active breach of the contract by continuing to prosecute a claim as owner of the property under an alleged antecedent and conflicting title until long after the institution of the present suit. Under the circumstances a formal putting in default may possibly have been a vain and useless thing, not required to he done. But, after all, would it not be mere conjecture to say that the defendant would not have complied if a proper demand had been made ? Do the-facts relied upon as evidencing an active positive breach of the contract, render it legally certain that a demand would inevitably have been followed by a refusal? We must keep in mind that the heirs of Doll permitted the defendant to remain in uninterrupted iwssession of the property from the death of their ancestor in 1861, until the institution of this suit in July, 1866, after the judgment had been rendered against him in his suit against the heirs for one-half of all the property. The administrator too received from him revenues of tho property. After the defendant’s failure in that suit, be may have thought-it best to pay for the property he bought at the probate sale. At alii events, during this long period, no proper demand was made, and consequently no direct absolute and positive refusal was made. We are-referred to the cases of Rowley v. Kemp, 2 An. 360, and Pendarris v. Ware, 14 An. 449, as more especially in support of the position assumed on tlie part of the plaintiffs; but we do not consider them as bearing on the case at bar. In Rowley v. Kemp, it is said that “ Rowley, as agent of Lansing, bid for the property, and. it was adjudicated to him, and he not complying with the terras of the sale, the sheriff read vortised the property for sale, treating the acts of Rowley, attorney in fact, as nullities, as he was bound to do; for his conduct throughout shows that his sole object was to embarrass the proceedings of the sheriff, and defeat the process of the court.” But we learn further, that Rowley refused to comply with his bid, and the reasons assigned for his refusal were not satisfactory to the court. In the other case, Pendarris v. Ware, there was an active breach of the contract, because the widow tendered in payment of her bid, not money, which was required by the terms of sale, but claims against the estate of her deceased husband, and positively declared she would give nothing else.

As' a condition precedent to the rescission of contracts and to the recovery of damages for the nonperformance of engagements, the putting the party in mora is strictly required; and the default must be made clearly to appear.

We think the plaintiffs in this case have not made out the alleged refusal of the defendant to comply with the terms of the sale with that precision and clearness which, in our opinion, the law requires.

The conclusion we have arrived at renders it unnecessary to pass; upon the several bills of exceptions found in the record.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed with costs  