
    No. 5767.
    Mrs. M. Germaine, Tutrix, vs. Frank Mallerich.
    The sale of a deceased husband’s property under executory process will be held invalid when it appears that the appraiser, by whose appraisement the property was sold, was appointed by the widow, and that she was not the agent of her deceased husband, or the legal representative of his succession.
    A purchaser in bad faith is not entitled to have the purchase price tendered to him before the institution of a suit for the recovery of the purchased property.
    The recital of an order of court in a sheriff’s return is not a sufficient proof of the order.
    The employment of an attorney to defend a suit does not authorize him to receive from the sheriff the proceeds of the defendant’s property sold under judgment in that suit.
    A purchaser in bad faith is liable for the fruits and revenues of the property while in his possession.
    The mere fact that a widow appoints an appraiser, in the sale of community property sold under executory process, will not make the sale a valid one as to her half of the property, when it appears that she acted for her husband, of whose death she was ignorant.
    ^PPEAL from the Sixth District Court, parish of Orleans. Saucier, J.
    
      Mcffloin & Nixon for plaintiff and appellee.
    
      C. F. Hafft and F. Michinarcl for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff as tutrix of the minor children of Prangois 'Germaine, deceased, sues to recover two pieces of property in New Or.-leans, with their revenues. This property was sold and adjudicated to ■defendant on 7th July, 1873, under an execution issued on the judgment of Bruenning vs. said Frangois Germaine, said judgment recognizing a ■mortgage and vendor’s lien thereon.

Plaintiff alleges numerous nullities against the validity of said sale, ■and charges that the defendant was a purchaser in bad faith, and with lull knowledge of the defects of said title, and is therefore liable for .fruits and revenues.

The facts are, that Frangois Germaine, who was a citizen and resident of New Orleans, went on a trip to Costa Rica, where he died on the :2d June, 1873, his wife, the plaintiff, and their children remaining in said city. The sheriff returns that he made the seizure of said property on. ■ 31st May, 1873; that the property was duly appraised by experts appointed by plaintiff and defendant. The proof is, that the defendant’s wife appointed the appraiser by a writing wherein she states that her .husband was absent. This appointment was made on or after 18th • June. She does not sign as his agent, nor is there the slightest evidence .-that she was. Germaine’s succession was not opened till some time in September, and plaintiff qualified as natural tutrix in October, 1873.. We think that upon the state of facts here disclosed the sale to the defendant was illegal and null. It requires no citation of authority to show that a man’s wife, or his widow, for that matter,^ as such, has no-authority to act for him in judicial proceedings. She had no such powers of agency. Hence the question discussed by defendant’s counsel as-to the effect of the unknown death of the principal upon the subsequent, acts of the agent does not arise, and requires no discussion.

It is equally elementary that after the death of a defendant in execution proceedings to sell his property, without making his heirs or legal'i representatives parties, aré illegal.

We therefore hold that the sale to defendant was null and of no effect, and did not divest the succession of Germaine of the property in question.

But defendant’s counsel, in their brief, urge that the plaintiffs should have tendered him the amount he paid on his bid. No such objection or exception is made in defendant’s pleadings. But had it been made, we think that it would have been unavailing, for the reason, as-we shall see hereafter, the defendant was a purchaser in bad faith, and', had by his own confession full knowledge of Germaine’s death before-he accepted the sheriff’s title, on 28th August, 1873. We understand the-rule requiring previous restitution or tender to be an equitable relief granted only to purchasers in good faith. To extend the rule further would be to allow purchasers to take advantage of their own wrong. It is-'purely an equitable rule, and would be abused by allowing wrong-doers-to avail themselves of it as a condition precedent to the undoing of their own illegal acts. C. C. 3453 ; 30 A. 174; 6 A. 585 ; 26 A. 188, 343 ; 24 A. 472 ; 2 A. 543; 6 N. S. 674 ; 3 L. 543.

It is further objected in defendant’s brief, but nowhere in their pleadings, that plaintiffs are estopped from contesting this sale, first,, because the sheriff says in his return that by “ an order of the Second District Court in the matter of the succession of E. Germaine, No. 36,473,” he was directed to hold on to the proceeds of sale. As we have seen, the succession of Germaine was not opened until the middle of' September, 1873, long after this sale, and the number of that succession is shown to be 36,611. Even if it were conceded that the tutrix could ratify the sale in this way (which we think she could not do) the mere-recital of what the sheriff supposed to be such an order is not sufficient-proof of it. Secondly, the sheriff recites in his return that he paid to Braughn & Buck “defendant’s attorneys,” the surplus of the price, to-wit, §35. We have seen that defendant was dead. His attorneys had no mission or power to represent him, therefore, even if they had before his-death. It does not follow that because an attorney is employed to de ./end a suit, that he has authority to receive from the sheriff theproceecls of defendant’s property sold under judgment in that suit

The only remaining question is as to the fruits and revenues. The evidence satisfies us, as it did the judge a quo, that the defendant was a purchaser in bad faith, and therefore liable to pay the fruits and revenues. Had the defendant claimed to compensate this demand by the payment he made, we should have allowed it. But no such defense was made or is now made. He simply asked that Bruenning’s heirs be cited in warranty, and condemned to pay him a reasonable sum for his attor-ney’s fees, and that his rights against them in other respects be reserved to him. The court a qua reserved his rights as prayed for.' He has recourse upon them, or if he has paid the mortgage held by them, perhaps ■he would have his recourse on that, as subrogee.

The judgment is affirmed at the costs of defendant.

On Application bob a Rehearing.

Defendant’s counsel complains that the court has ignored that part •of his argument in which he claims that the sale to him was at least valid to extent of the widow’s half, it being community property. This •argument rests solely and exclusively upon the fact that she, after the husband’s death, appointed an appraiser.

It is elementary that an act done by an heir or surviving wife, in ignorance of the death of the ancestor or husband, and therefore with ■no intent to accept, will not constitute such acceptance.

It is the intent with which the act is done that the law regards chiefly. It is patent on the face of the paper whereby she appointed the appraiser that she had no such knowledge and no such intent. She professes to act for her husband, “who is now absent from the city.”

The counsel also complains bitterly of the decree holding him to be a possessor in bad faith. The district judge, who saw and heard the witnesses, so concluded. An examination and re-examination of the facts and evidence lead us to the same result. It is at all times án unpleasant, and often a distressing duty, which courts are called upon to perform, to decide in the last resort upon the rights of their fellow men. But after a full and conscientious investigation of the facts, it is our •duty to apply the law to them as we find them.

We see no possible ground to doubt the nullity of this sale. We think the weight of evidence discloses in the defendant such knowledge as renders him a possessor in bad faith. Nor do we see that the ultimate effect of our decree is so crushingly disastrous as the counsel pictures. 'In every event, and whether in good or bad faith, his client would •owe the fruits and revenues from and after the 17thNovember, 1873, the date of bringing this suit. The effect of bad faith is to make him liable for four months longer time. If the rents were not worth the sum, claimed, defendant should have rebutted the positive and uncontradicted proof that he was receiving $75 per month. He did not do so, and we must presume he did not because he could not.

We adhere to the views expressed in our former opinion, that restitution as a condition precedent to an action of nullity can be demanded only by purchasers in good faith. But while a purchaser in bad faith can not invoke this equitable rule, he may well set up by way of reconvention a claim that in case he be evicted he have judgment for moneys expended for improvements and taxes, as well as for the amount of the sum paid in satisfaction of the plaintiffs’ debts. If the sale is annulled the judgment debt and mortgage revive, and if defendant has paid them, he is legally subrogated to them.

But we can not render such judgments where there is no pleading or prayer to support them.

Defendant’s only prayer in this regard is that his warrantors be-cited, and condemned to pay him a reasonable attorney’s fee, and that, his rights in other respects be reserved.

The rehearing is refused.  