
    
      MELANCON'S HEIRS vs. DUHAMEL.
    
    West’n District.
    Sept. 1821.
    Appeal from the court of the fifth district.
    
      Brownson, for the plaintiffs.
    The plaintiffs demand one half of the price of a plantation, belonging, in common, to the widow and to the heirs of Charles Melançon, deceased.
    The payment is resisted, on the ground that the proceedings of the family meeting, which recommended the sale, are not written in the English language. Constitution, art. 6, sec. 16.
    The court will perceive, that the heirs of Charles Melançon are three majors and four minors; and the defence goes upon the ground, that the sale is absolutely void, not merely as it regards the latter, but as it regards the former and the widow; and that its nullity may be claimed, even by the purchaser.
    
      The process verbal of the sale of a minor’s real estate, by the parish judge, is valid, altho’ it be reduced to writing in the French language ; as the sale might have been made by any other auctioneer.
    The formalities, which the law prescribe for the sale of a minor’s estate, are introduced for his exclusive advantage, and a vendee cannot successfully allege the want of any of them ; so that he cannot resist the payment of the purchase money, on the ground, that the inventory & other proceedings preceding the sale, are in the French language.
    1. No family meeting was necessary to make the sale a legal one.
    2. If a family meeting were necessary, its proceedings needed not be written in the English language.
    3. Admitting such meeting to have been necessary, and that its proceedings are required to be in English, the defendant cannot take advantage of the irregularity.
    I. Before the act of 1811, it was the duty of the parish judge to proceed to the sale of a succession, within convenient time after it should be opened. Civ. Code 174, art. 128, and 68, art. 56. By the act of 1809, the natural tutor, with the consent of the under tutor, might petition and be authorised not to sell a part, or the whole of his ward’s estate. 3 Martin’s Dig. 126, sec. 10. By the act of 1811. minor’s property is to be kept unsold, unless the tutor, with the consent of the under tutor, and of at least five of the nearest relations of the minor, or of an equal number of friends, if there are no relations. " duly sworn to declare the truth, the whole truth and nothing but the truth; shall declare, that it is for the interest of the minor, that said property, or part thereof, be sold." 3 Martin's Dig. 132, sec. 19. There is nothing, in this section of the act of 1811, which speaks of a meeting of family. Nothing which directs that the tutor, under tutor and nearest relations, shall be together when they make the declaration required. Indeed, they are not called upon by this law, to deliberate ; but to declare, under the solemnities of an oath. They must all declare in favour of the sale; not merely the five nearest relations, of which a family meeting is composed in other cases, but the tutor and under tutor must declare also. There is surely nothing of a deliberative character in such a proceeding; nothing like canvassing different and contradictory opinions, and setting forth the opposing motives and arguments of each. In other cases, when a meeting of family is called, it is usually to deliberate upon some matter on which an unanimity of opinion is scarcely expected and certainly not indispensible.
    
      Thus a judge appoints a tutor by and with the advice of a meeting of family. “ In such case (says the Civil Code, 62, art. 21) and indeed, in every case where it is prescribed and necessary, that a meeting of family shall be called, such meeting shall consist of at least five of the relations; or if there be no relations of the friends of the minor called, by order of the judge, who is to appoint the tutor, in the office of any notary or justice of the peace, residing in the place; which said notary, or justice of the peace, shall put their deliberations in writing, and cause it to be signed by such of the attending relations or friends as know how to sign, and shall also sign himself.” Let us suppose the case, in which three candidates present themselves, to claim the tutorship of some minor. In obedience to our laws, a meeting of family is called to deliberate upon the interests of the minor, and to select a suitable tutor for him. In this case, the importance of reducing the deliberations of the meeting to writing, would be apparent. The judge, who would be obliged to select from among the candidates, ought to have the whole of the particulars before him, as who had been proposed, by whom, and what arguments or reasons were urged against and in favor of each.
    The act of 1811 does not even require, that the declarations, made under oath, should be put in writing. The judges would, no doubt, always do it, in order to preserve the evidence of the formality having been complied with. And I suppose it might be done in the common form of affidavits, containing the necessary substance, made all of them at the same time, or at different times, as would be most convenient to those from whom they are exacted. If I am correct in this, then these declarations, which may be made before any one competent to administer an oath, can in no respect be considered a written judicial proceeding, within the meaning of the constitution. As a matter of expediency, they are written to be sure, but not because the law imperatively commands it. A deposition is as much a written proceeding as these declarations, and yet they are made every day in French. But there is another ground upon which this sale may be justified, without the necessity of even the declarations prescribed by the act of 1811. It will be seen from the authenticated extract in this record, where 
      it says. les esclaves ainsi que l'habitation restant hypothiqués, &c. That there was only one tract or land belonging to the succession, which was that sold to the defendant. Now, one ultimate object of the sale was undoubtedly to effect a partition. For it will be obvious, on a little reflection, that a partition in nature could not be made without almost a total sacrifice. On such a partition, the widow would take one half, which would have left only two and a half arpents front, to be divided among seven heirs, giving to each a small fraction more than a quarter of an arpent ; a portion evidently too small for any agricultural purpose. If then a partition could not have been made in nature, this sale comes within the exception stated in that very act of 1811, which prohibits in general the sale of minor’s property, except with certain formalities. Martin's Dig. 134, sec. 21, says. “ that nothing contained in the preceding sections shall be construed, in any case, in such a manner as to prevent any sale of minor’s property, should said sale be necessary, either for the payment of the debts of the estate, or for the division thereof, when there are heirs, who having attained the age of majority, or being emancipated, shall claim their portion of the same. In this case, there were major heirs, and the sale was necessary for a division. The general prohibition can only apply to cases where the minor holds property in severalty, or where being in common with others, a partition cannot be made in nature.
    It would be absurd, as well as contrary to the exception contained in this statute, to say that majors must remain in common, because a meeting of family, deliberating upon the interests of minors only, might happen to be of opinion, that their interests would not be promoted by the sale, or because the declarations required by the statute, could not be obtained. The enjoyment of one's rights cannot be so clogged and shackled, not even tor the benefit of minors.
    The Civil Code, 184, art. 156, has expressly declared, that “ none of the co-heirs or coproprietors of an undivided thing or estate, can be obliged always to remain in that state. Thus, any of the co-heirs or co-proprietors of age, or minors, can compel the others to a partition of the estate, which they possess jointly, whatever be the lapse of time during which the joint tenancy may have lasted.” Again, 188, art. 171, " where things are by their nature indivisible, or when they cannot conveniently be partaken, their sale must be proceeded by cant or licitation. Id. art. 172. Cant or licitation is the act by which an immoveable, which is common to several persons, and cannot be partaken conveniently, is adjudged to one of them, or to some other person.” We can scarcely need any direct proof, that the majors had claimed their portion of the succession, since they could have no motive for wishing to abandon, for a long time, the enjoyment of their rights. It will be seen, however, that the sale was made at the instance of all the heirs; of the majors, as well in their own names, as in the names of the minors whom some of them represented. What personal interest could have prompted them to solicit the sale, but to obtain their portion of the succession. It will not be expected that we should shew that a petition had been filed in the office of the parish judge, claiming a partition in form. It cannot be difficult to comprehend, that in these small successions in the country, where there are many heirs, and where the portion coming to each, is but small, the parties interested are desirous to get what is coming to them, as speedily as they can, and as little as possible incumbered with charges and expences, that lawyers are very seldom employed in these cases, and that no rigid observance of forms is exacted. The truth is, we have never had any known and established rules of proceeding in the parish court, before the act of 1820, and applications to the parish judge, for the exercise of his official duties, were more frequently made verbally, than in any other manner. In the case under consideration, it was obvious that the property must be sold, as a partition could not otherwise be made ; and when once sold, there could be no difficulty in dividing the proceeds among the heirs, and that, without any formal petition for that purpose. Indeed, there could be no necessity for a formal petition to do that which all the heirs were ready and willing to do amicably, and without coercion. What is called a meeting of family, in this case, the proceedings of which are objected to, as being written in French, may with more propriety, be considered a meeting of co-proprietors; and their deliberations may rather be regarded as a mutual expression of their consent that a sale should be made, in order to enable them to divide and enjoy, in severally, their respective interests, than as the proceedings of a meeting of family, assembled to deliberate exclusively upon the interests of minors. The sale was a necessary preparatory step towards a partition, without which, the partition could not be effected; a measure which might have been coerced, if necessary, by the majors, and which was, therefore, properly assented to by those who represented the minors. The sale was a cant or licitation, which it was competent for the judge to decree, on seeing that a partition was otherwise impracticable, even though it had been opposed by the representatives of the minors. And can their consent make the sale less legal ? I should think not.
    II. It has been contended that the section of our constitution under consideration, should receive a most liberal interpretation, that what is called the policy of the law exacts it; that the government of the united states, in having required as a condition to our admission into the union, a provision like that, contained in our constitution before quoted, had a deep design to produce by it a change in the language and manners of the people of this state ; that courts of justice ought to lend their aid for the accomplishment of this object, by a construction, which will extend as widely as possible, the influence of the provision.— I think, however, that another and far different motive may be attributed to the government of the united states, for having stipulated the condition of which I am speaking; a motive which is much more obvious, rational and consistent with truth, than the one which is suggested by the counsel for the defendant. The constitution of the united states, art. 4, sec. 1, says, that “full faith and credit shall be given in each state, to the public acts, records and judicial proceedings of every other state." It was undoubtedly the object of this section, to place the acts, records and proceedings of each state, on a more favourable footing in the other states, than those of foreign countries; and as they possess these privileges and advantages, it is but fair that they should be written in a language the least likely to embarrass those who are thus to be governed and affected by them. Hence, the propriety of the condition, as it regards the “ laws, records and judicial and legislative written proceedings of this state.” We have no need of the forced hypothesis put forth in the defence, to account for this condition. It is the very excellency and distinguishing feature in the government of these united states, that it is conducted upon a plan diametrically opposed to those refinements in policy, which, for the most part, characterise the intrigues and politics of courts; that it leaves human affairs to proceed as far as is consistent with the public good, in their natural channels; that it does not entangle itself by artifice and insincerity, nor intermeddle more than is necessary with merely private and ordinary affairs. It is to this unrestrained liberty in every thing, that we shall owe our future greatness ; and it is because I am fully persuaded that the government of the united states has hitherto been administered upon this simple and unartificial system of policy, that I cannot credit those deep and far-fetched views which have been imputed to it in this case. But, however this may be as it regards the general government, it is certainly the duty of courts of justice, in the construction of laws, to carry into effect the most obvious, natural and authorised intentions of the legislature, not those which an ingenious mind may conceive as merely possible. This court will not therefore, I am persuaded, strain the constitution for the purpose of promoting intentions which are neither obvious nor natural, and which by some, may also be thought unauthorised. Are there not inducements enough for the cultivation of a language, in which are written our constitution and laws, in which is to be embodied our future history ? Would it be difficult to prove that this state must, in the natural course of things, assimilate in its language and manners to the rest of the united states ? Is it necessary to resort to an insidious policy, to force us to become one people ? Must those changes, which if uncoerced, would be yielded to with cordiality, be rendered ungracious by a haughty and unconciliating air of compulsion ? I can see no necessity for all this, and it appears to me, that if the government of the united states have so intended, they have intended a very foolish thing. But to come to the question. The words of the constitution are, that “ all laws that may be passed by the legislature, and the public record of this state, and the judicial and written legislative proceedings of the same, shall be promulgated, preserved and conducted in the language in which the constitution of the united states is written.”
    It will not, I imagine, be contended that the proceedings arraigned in this suit, come within the meaning of the words, “public records.” It will be admitted on all hands, that the word public, as here used, means political; that the term is used to designate records, which regard public, as contra-distinguished to private affairs, that is the records which are kept of the acts of that ideal, being called the public.
    If there could be any doubt in the English text, there can be none in the French, the corresponding words of which, are les archieves de cet etat. It has, however, been contended, and I suppose will be again contended, that the proceedings of a meeting of family are judicial proceedings, within the meaning of the constitution, and must therefore be written in the English language. Perhaps this question does not open a very wide field of argument. But it appears to me, that if the term judicial is restrained to its natural and ordinary meaning, it cannot be applied to the proceedings of a meeting of family. I should call no proceedings judicial, excepting those either of a judge of a court, or of some of its officers; and the proceedings in question, are neither those of a judge of a court, or of any of its officers, which I think I shall be able to demonstrate.
    The Civil Code, (before quoted) page 62, art. 21, says, that in every case where it is prescribed and necessary that a meeting of family shall be called, such meeting shall be called in the " office of a notary or justice of the peace,” &c. It is no where said that such a meeting shall be called before a judge, before a court, or before any officer of a court.— Neither is the duty of the officer before whom the meeting is called, a judicial duty. It is merely notarial. He shall put, says the law, “ their deliberations in writing, and cause it to be signed,” &c. He does not assist at their deliberations. He does not direct and control them. Nothing can be more apparent than the difference between the duties of a judge and those of a notary. They are two distinct and independent bodies of magistracy. It is the duty of a judge to declare what the law is. It is the business of the notary to note what laws the parties, by their agreements, impose upon themselves. It is the duty of a judge to decide what the parties shall do.— It is the business of a notary to reduce to writing and record, what the parties agree to do. The one is an officer, in whose capacity to judge what is right, the law has placed confidence, and to whose decrees it therefore exacts submission. The other is an officer, in whose capacity and fidelity to put the thoughts, opinions and engagements of others in writing and in form, the law has placed confidence, and therefore calls their acts authentic, and gives them the privilege and preminence over other instruments, of being full proof of what they contain. The judge commands our respect and forces our obedience. The notary exercises his functions in retirement and seclusion, and his acts are subject to the superintending authority of courts, who regulate and control them. The duties of the notary are merely ministerial duties.— They can have no pretentions to be called judicial. Why then call the proceedings necessarily had before such an officer, judicial proceedings ? It will perhaps be said that the meeting of family may be called in the office of a justice of the peace, who is a judicial officer, and therefore that the proceedings may be judicial. But no one can seriously believe that these proceedings are to possess a varying and shifting character, according to the description of magistracy before which they may take place. If, however, such could be the case, it would be sufficient to shew that the officer before whom the proceedings were had in this instance, was a notarial officer, as well as a judicial one. The court will not presume that a notarial duty was performed by him, in his judicial, rather than his notarial capacity, merely to make the proceedings had before him, void. If justices of the peace have been by law deemed competent to the discharge of these notarial duties ; if meetings of family may be convened indifferently, before a notary or justice of the peace, it was probably permitted with the view of multiplying, as much as possible, the facilities of these proceedings, and because they are not extremely difficult, and because, at all events, they are subject to revision before another officer, who can take the necessary steps to correct what may be found erronious in them.
    It may be contended that these proceedings were had before the judge himself, and therefore are judicial. This court, however, well knows that parish judges are ex officio, both notaries and justices of the peace. 3 Martin's Dig. 270, n. 13, & Id. vol. 2, 214, sec. 5. So that, as to these proceedings, he must have acted in one or the other of those capacities, since there is no authority for calling a family meeting, before a judge, as such. There is a case in 1 Martin, 137, 9, which perhaps bears upon this point, the case of Detournion vs. Dormenon.
    
    In that case, it was decided that the parish judge, who was then ex officio sheriff, could not punish for a contempt of his authority, as judge, while performing the duties of sheriff. This decision shews, if any decision were necessary to shew, that where more than one office is united in the same person, the law will judge of the capacity in which he acts, from the nature of the duties which he is discharging.
    I know of but one ground more, upon which it can be urged, with the least colour, that these proceedings are judicial. It may he said that they are so, because they have been had in obedience to the order of a judge ; that though not directly, they are indirectly the proceedings of a judge, and consequently judicial. If, however, these secondary and remote consequences are to be brought within the prohibition of the constitution, there are few proceedings in this state, which will stand a scrutiny. For instance, the sale of a succession, made in obedience to an order of the parish judge, by an auctioneer, would be a judicial proceeding; and the written part of it, the process-verbal of the sale, would be required to be in English. The taking of a deposition out of the state, by an order of court, under a commission issued for that purpose, would be a judicial written proceeding, as such deposition cannot otherwise be taken than in writing, The answering of interrogatories, in compliance with an order of court requiring it, would be a judicial written proceeding. Fifty other cases might probably be stated, which would be equally as objectionable as the one before the court. If any object of great public utility were to be promoted by such a construction, it would be the less censurable. But instead of that, it lets in a confused and inexhaustible train of evils and abuses. It invites litigation and bad faith, produces ruin to parties, and disorder to the public.
    On principle, therefore, I think that such a construction ought not to prevail; and on the score of precedent, I think there is quite as little pretence for it. The first decision which I can find in this court, that bears any analogy to the present case, is in the suit of Clark's ex. & al. vs. Farrar, 3 Martin, 248, upon a bill of exceptions. In that case the instrument of sale and mortgage, on which the suit was brought, being attached to the petition, and made a part of it, it was contended that it should have been translated into English, and furnished to the defendant. But the court decided that it was mere evidence, and need not be translated. This decision will not, I presume, be invoked by the defendant. The next case in point of time, is that of Dufau & al. vs. Massicot & al. 3 Martin, 291, in which it was decided that the judgment of the parish court of Placquemines, and the proceedings in execution of it, were had during the interim between the territorial and state governments, and were not therefore unconstitutional. As yet we find nothing against the plaintiff’s right of recovery in this suit. The next case is that of Dussuau's syndics vs. Bredeaux. 
      4 Martin, 450. Here the defendant's mistake may be said to have commenced ; the court says " We incline indeed, to think that the acts of creditors, convened by a court of justice, are part of the judicial proceedings, the whole course of which forms what is called juicio de concurso ; and as our constitution directs that all judicial proceedings shall be recorded, and conducted in English, we are disposed to believe that if the objection raised, had come from a person who had no concern in, nor adhered to the proceedings complained of, it would be our duty to declare they were not legal.” The opinion here intimated has, however, been confirmed by a subsequent decision. 7 Martin, 409. So that the law, in regard to the proceedings of insolvent debtors, may now be considered as settled. But let it be remembered, that this decision has been made with an express reference to the Spanish law, where such proceedings are denominated juicio de concurso ; that they take place in a contentious tribunal; that there are in such proceedings, two parties opposed to each other, the insolvent debtor on the one side, and his creditors on the other; that an appeal is made by both parties, to a tribunal appointed by the law to decide between them; and consequently, that the proceedings have every requisite necessary to give them the character of judicial proceedings. I come now to the last reported case, which I shall notice on the subject of these proceedings, a case triumphantly quoted by the defendant’s counsel, and considered by him as putting all controversy at rest. It is the case of Tregre vs. Tregre. 6 Martin, 665, 9. The facts, as stated by the court, were, that Antoine Tregre, the defendant, after the death of Mary Hydel his wife, caused an inventory of their joint estate to be made, and obtained the whole estate to be adjudicated to himself. Four of the children of the deceased claimed the nullity of the adjudication, on the ground that the family meeting, whose consent is required by law, to an adjudication of this nature, was irregular and incomplete, and that the proceedings on the adjudication were not written in English, as all judicial proceedings ought to be. Upon this case the court observes, “ it has been debated between the parties whether these proceedings are such as the law calls judicial.— But having no doubts that the acts of a judge, presiding as such, to the petition of an estate, and decreeing the adjudication of it, according to law, are stamped with the character of judicial proceedings, it is our duty to declare, that unless such proceedings are written in English, as the constitution directs, we are bound to pronounce them void,” If I could have felt any doubts of the correctness of the position which I have been labouring in this argument to maintain, the reasoning of this case would completely have dispelled them. So far from its being an authority for the defendant, I consider it almost a conclusive one for the plaintiffs. The very distinction which I have endeavoured to illustrate between the proceedings of a judge, and those of a notary, though not expressly stated, is very strongly implied. To the meeting of family, it was objected that the proceedings were “ irregular and incomplete,” and we learn from the history of the case, that an attempt was made to establish this objection by parol evidence; so that the irregularity must have related to something else than the mere language in which the proceedings were written and recorded; though the last objection was urged also, not however, to the proceedings of a mere meeting of family, but as if to distinguish it from the other, “ irregular and incomplete” proceedings. The learned judge who delivered the opinion, proceeds to state, as an additional objection, that " the proceedings on the adjudication were not written in English.” But, observe the language of the opinion.— “ Having no doubts that the acts of a judge, presiding as such, to the partition of an estate, and decreeing the adjudication of it according to law.” It was the “ acts of a judge,” then, that were in question before the court, not in his capacity of notary, auctioneer, or justice of the peace, but “ presiding as such;” that is, as judge to the partition of an estate, which shews also, that the court looked to the nature of the duties that the judge was discharging, in order to ascertain the character of his acts, an inference strengthened, and it appears to me, put beyond doubt, by the concluding clause, “and decreeing the adjudication of it according to law.” The court might well say, under such circumstances, that there was no doubt. It was too plain a case to admit of doubt, and if the facts in this suit had been similar to the facts in that, I should also have felt that there was no doubt, and should not have troubled the court with this argument. But here the only decree given by the judge is in English. He has kept up, throughout, the distinction between his judicial and notarial duties. As notary, he has recorded the deliberations, if they may be so called, of the meeting of family convened before himself. As judge, he has decreed the homologation and confirmation of these proceedings, and orders their execution; and has decreed also, the adjudication to the widow, as recommended by the meeting. He speaks of himself as connected with these proceedings in the third person. “ Let the foregoing proceedings of the meeting of family had before the judge of the parish of St. Martin,” &c. If the constitution is to be extended, to make void such proceedings, we are in a most lamentable condition in this part of the country; and many will be led to regard the law as a mere cover for legal swindling. Some estates to the amount of more than a hundred thousand dollars, and a still greater number under that sum, have been sold in this parish, with precisely the same formalities; and I make no doubt that the same thing has been done in other parts of the state. This I know is not an argument for the court to give an illegal decision. But in a doubtful case, it is certainly right to look to consequences; and the court will not, I am certain, rashly entail upon the public evils so serious, without a pretty urgent and obvious necessity for so doing. Before concluding this point, it may not be amiss to notice, that I have understood that this court should have decided the award of arbitrators to be judicial proceedings, within the meaning of the constitution. If so, it must probably has been on the ground, that arbitrators are judges, appointed by the parties, and that their award is in itself a judgment, that cannot, if legally given, be altered or varied by the court; and I cannot conceive that such a decision should militate the least against the principles which I have been endeavouring to maintain in this suit.
    III. Admitting all that I have hitherto said to be fallacious; admitting a meeting of family to have been necessary in such a case as this, and that its proceedings are required to be in English, still another question lies in the way of a decision for the defendant; can he take advantage of the irregularity ? Will the law permit him to dispute the title which he has acquired? Can he claim; not that the title shall be made good to him; not that he shall he secured a satisfactory indemnity, in case of a possible eviction, at some future period, but that the sale shall be avoided and set aside altogether, in his favour ? It is difficult to say, whether reason or authority is most strongly opposed to such pretentions. I do not know whether the defence, in this case, will strike every body in the light it does me; but to me it has the appearance of trifling with good faith, to say the least of it. That part of the answer which relates to Pierre Broussard’s claim, the court will perceive, is not supported by a scintilla of evidence; and as to the last plea, that “ the proceedings in the inventory and sale, were conducted and carried on in the French language,” the court cannot mistake its object. The court will see in it the desperate efforts of a man, who wishes to shake off by any means, a bargain that he has become tired of. It is not because he seriously apprehends any danger from this quarter, that such a plea is resorted to. Had that been the case, he would have been satisfied with the offers made him by the plaintiffs, In vain do they tell him, “sir, you have got an unquestionable title to about three-fourths of the plantation. You have the rights of the widow, who was entitled to one half. You have the rights of the three major heirs; at least, these proceedings are binding upon them, and it is extremely questionable whether even the minors can object to them. But whether they can or not, we are willing to give security to any extent, that they shall never do it.” A reasonable man, fond of his purchase, and wishing to retain it, would certainly have been satisfied with all this ; but not so doctor Duhamel. A confirmation in the most ample form, cannot satisfy him; nor security to any extent. Nothing, indeed, will satisfy him, but to set aside the sale; and in this, it appears to me, he is too unreasonable to be indulged. The court will please to observe too, that the defendant is, at this moment, in the actual and undisturbed possession and enjoyment of the property sold to him; that one year's crop had been drawn from it before the commencement of this suit; and that profits are probably yet derived from it by the defendant. Suppose the sale to be set aside, what are to become of all these ? Is the defendant to account for them ? Or do the vendors forfeit them, as a sort of punishment for having made an illegal sale of their property ? Is the cause of nullity good, only by way of defence ? Or, suppose the price to have been paid at the time of the sale, could the defendant have asserted its nullity by an original action ? If so, within what time must such action be brought ? Can the defendant enjoy the property as long as he pleases, and when he gets tired of it, annul the sale, and claim the re-payment of the price ? These are a few of the absurd difficulties which the defence suggests. I appeal to the experience and knowlege of this court, whether applications to annul the sale of a piece of properly for alleged defect of title, are frequently made by a vendee while in the full and undisturbed possession and enjoyment of such property ? On the contrary, is not the whole policy of the law opposed to such a practice ? What would be the consequence of permitting it ? The consequence would be, as in this case, that whenever the vendee was called upon for the price, he would begin to cavil about the title. Or if, in the fluctuation of events, the property, should become less valuable, the vendee would begin to search for some defect in the title, which would enable him to throw the property back again upon the hands of the vendor. But this court has already decided, 7 Martin, 223, that the vendee cannot refuse payment of the price, nor can he require even security from the vendor, until disturbed by a suit actually brought to evict him. The law only speaks of “ suspending payment” in certain cases, but no where of withholding it altogether; and those cases in which it may be suspended, are stated to be, when the purchaser is disturbed by an action, soit hypothecaire, soit en revendication. Civil Code, 381, art. 85. What are the obligations of the vendor in the contract of sale ? The Civil Code, 348, art. 24, says, that there are two principal obligations, viz. that of delivery and warranting the thing sold. The first of these objections the plaintiffs have already complied with. The delivery has been made. As to the second, the same authority says, art. 25, that it has reference to two objects. First — peaceable possession : secondly — hidden defects or redhibitory vices. As long then, as that peaceable possession, which the vendor is bound to warrant, remains undisturbed, no breach of the vendor’s obligation of warranty can be alleged. But it may be said, perhaps, that, it is of the essence of the contract of sale, that a title should be given to the thing sold. That whenever this is not done, there can be no sale, A slight examination of authorities will, however shew, that a valid title to the thing sold, is not of the essence of the contract of sale. A man may sell a thing to which he has no title at all, the thing of another; and do it without the owner's consent, and the sale will be valid. Not, indeed, so as to transfer the property to the purchaser, but so as to bind the parties to their contract. The vendor obligates himself by such sale to delivery and warranty, the same as if the title had been in him, and the vendee becomes liable on delivery, to pay the price. On this subject I refer the court to ff. 18, 1, 28. Domat, part 1, liv. 3, tit. 2, sec. 4, art. or n. 13, Pothier Traité du contrat de vente, part 1, sec. 2, art. 1, n. 7. 5 Partida, tit. 5, ley 19. Febrero addicionado ó libreria de escribanos, part 1, cap. 10, sec. 1, n. 7, vol. 2, p. 363.
    Such is the general doctrine, when a man sells as his own, the thing of another. And if the purchaser was aware of it at the time of the sale, the seller is not even liable in damages, nor bound to restore the price, unless is expressly so agreed. Febrero, ib., 5 Partida, ib. I am now going upon the hypothesis, that the proceedings of the meeting of family are, as the defendant contends, void; that this sale is the same as it would have been without any such proceedings. Upon this hypothesis, it is the sale of minor’s property, without being legally authorised, and such a sale, I admit, is null; though a further examination of authorities will shew, that this is a mere relative, and not an absolute nullity; that though it may be asserted in favor of the minor, it cannot against him. On this point I refer the court again to the same Treatise of Pothier, part 1, sec. 2, art. 1, n. 13, p. 9, where it is said, that we cannot purchase property of which we have the administration. That a tutor cannot purchase property belonging to his ward, &c. but that the nullity of these sales is not absolute, like that of the property out of commerce; that the nullity is only pronounced against the tutor in favor of the minor; that it is established to prevent the frauds of a tutor, who, for his own interest, might be induced to purchase at too low a price; or to become the purchaser of those things which it was not the interest of his ward to sell; and further on, under n. 14. the author says, that there is also reckoned among things which cannot be sold, les heritages et autres immeubles des mineurs, &c. That these things can only be sold for some just cause, in virtue of the decree of the judge, and on observing certain preliminary formalities. But continues the author, la nullité de la vente de ces choses n'est aussi qu'une nullité relative, etablie contre l'acheteur, qui n’en peut opposer la nullité. The author then goes on to state, that if a third person sells, as belonging to himself, un heritage, a piece of ground which belonged to the church, to minors, or to other persons similarly circumstanced, the sale is valid, de méme que nous avons vu que l'étoit la vente de la chose d'autrui. It had formerly been supposed by some, that the art. 1599 of the Napoleon Code had changed the ancient laws of France on this subject. The article is in these words, la vente de la chose d'autrui est nulle—elle peut donner lieu á des dommages—interests, lorsque l'acheteur a ignoré que la chose fut á autrai. Many decisions have, however, taken place in France, subsequent to the adoption of this article, which shew, that even now the sale of minors property, without pursuing the necessary formalities, for such sales are not considered absolutely void; that the nullity is considered merely relative, and only to be taken advantage of by the minor himself. In a work entitled Jurisprudence du Code Civil. I have found many decisions which go to support the general principle, that the omission of a formality established in favor of minors, can only be objected to by them, and cannot benefit others. In vol. 8, p. 147, of this work, the following principle is decided, as stated by the author, to wit, La restitution des mineurs ne profiterait point aux majeurs. In vol. 16, of the same work, p. 456, the following principle is decided, as appears from the author’s note at the head of the case reported. On ne peut opposer au mineur le defaut d'autorisation dans les actes òn elle est impèrieusement exigée par la loi. In vol. 21, p. 294, of the same work, the following note is at the head of the cáse decided. La nullité résultant de ce que le tuteur n'a pas été autorisé pour plaider n'est relative qu'au mineur, et ne peut être invoquée par l'autre partie. Voyez ce que nous avons dit sur les nullités, p. 65, et 356, ler volume de cet ouvrage. On referring, as directed by the above note, I find the following remarks in p. 65. Nous observerons d'abord 
      
      que les nullités se divisent en absolues et en relatives. Les premieres proviennent de la violation d'une loi dont l'interet public est le principal objet; tout individu a le droit de les opposer ; teles sont celles resultant de la contravention aux art. 144, 147, 161, et suiv. du Code. Les secondes naissent de l'infraction d'une loi qui ne concerne que l'interêt privé des parties. On en voit de examples dans les art. 180, et 182. But in vol. 17, p. 432, of this work, there is a case in which the art. 1599 of the Code Civil, before quoted, is fully discussed. From the report of this case, it appears, that one Pasquale sold to a madame Panialis, at private sale, an estate belonging to his children. The purchaser, after enjoying, without disturbance, for three years, brought suit against Pasquale and his children, to get the sale annulled, pretending that it had not been made in conformity with the articles 452 and 457, of the Civil Code. But as these articles do not expressly declare that sales made in contravention of them, shall be null, she probably despaired of success, and abandoned the suit. At the same time, however, she commenced a new suit against Pasquale, the father, claiming that the sale should be annulled, as being in violation of article 1599. It is scarcely necessary to add, that the court decided against her pretentions. The court, in giving their opinion, observe, p. 438, Le vendeur dans le cas dont il s'agit, n'est point un tiers non interessé qui dispose sans l'aveu du proprietaire de la chose d'autrui, mais il est un mandataire que se charge de l'interet du proprietaire, qui promet en propre de l'execution du contrat, et de la ratification de celui an nom duquel il vend. La vente dans se cas se resout en une vente sous la condition de la ratification du proprietaire à étre rapportée par le vendeur, mais dés le moment óù cette ratification ou expresse ou tacite existe, le contrat est parfait, et la condition est remplie. So in the present case, admitting the proceedings relative to the meeting of family to be irregular and void, the vendors can be in no worse situation than they would have been without any such proceedings. The nullity of the sale could only be regarded as relative, and not absolute. On being hereafter ratified by the minors, it would become perfect and complete, a condition impliedly stipulated in the act of selling; and the performance of which is further expressly guaranteed by offering security. Besides, if the sale were totally void, its nullity might as well be asserted by the widow and majors, as by the minors. But would it not be perfectly ridiculous for the former to attempt such a thing ?
    Once more, for the last time; to sell the property of minors without observing the formalities prescribed by law, concerns only the private interests of the parties. It does not concern, chiefly, the public interest; and for this reason, the nullity is merely relative; which is in perfect accordance with the principles extracted from the 1st vol. of the work before referred to.
    Baker, for the defendant.
    The Civil Code is quoted to prove, that before the act of 1811, it was the duty of the parish judge to proceed to the sale of an estate, within convenient time after it was opened. The first quotation, 174, art. 128, relates to vacant estates, and can have no application here.
    As to the second, 68, art. 56, we find immediately after, in art. 58, that it is required that “ the judge, at the time of authorising the sale, shall fix, with the advice of the meeting of the family, the several terms of credit at which the minor’s property shall be sold, as well as the rate of interest, the securities to be given by the purchaser, and the other conditions of the sale, as the case may require.” The act of 1809. 3 Martin's Dig. 128, n. 12, declares, that “ whenever the estate of the minor shall consist of property not liable to decay or repairs, such as uncultivated lands, or lots not built on, the tutor shall not be at liberty to sell the same, but it shall be his duty to keep the same for the minor, unless he is authorised by the judge to sell either the whole or a part of the same, whenever said judge shall be satisfied, by and with the advice of the under tutor, and of the assembly of the family, that this sale is indispensably necessary to, or evidently to the advantage of the minor.” The extract just made from the Civil Code, proves that the sale must be made with the advice of the meeting of the family, a legal and indispensable requisite ; and further states, the particular objects, about which they are to consult, advise and deliberate. I make the other extract from 3 Martin, 128, to shew the general provisions of the law, in submitting the concerns of successions where there are minors, to a meeting of the family ; and most respectfully submit to the court, if a meeting of the family under this section, does not become necessary, where any part of the minor’s estate consists in unimproved lands, which never fails to be the case, in any country part of this state, where land is a part of the inheritance.
    Thinking it is made sufficiently obvious, that before 1811, a meeting of the family was absolutely necessary, to decree the sale of a minor’s property, the terms, credits, &c., let us examine if any change was made in the laws then existing, by the act of that year, dispensing with this preliminary.
    The first section of this act, 3 Martin's Dig. 132, n. 19, declares, " that from the passing of this act, the property of minors shall be kept unsold, unless the tutor, with the consent of the under guardian, and of at least five of the nearest relatives of the minor, or of an equal number of friends, if there are no relations, duly sworn to declare the truth, the whole truth, and nothing but the truth, shall declare, that it is for the interest of the minor that the said property, or part thereof, be sold.” The repealing clause at the end of this act, see 3 Martin’s Dig 136, n. 25, only repeals certain devisions in the Civil Code, and of the act of March 18th, 1809, as “are contrary to this act;” and the whole of the law must be considered as amendatory of the former laws, except where their provisions are directly contrary. The relations or friends, named in the section quoted above, at full length, it is true, are not called a meeting of the family, in express terms; but this assembly, consists of the same precise persons, required to compose a meeting of the family, by art. 21, page 62, of the Civil Code, it can be called by no other name, or considered as any thing else. One of the objects of the section under consideration, seems to have been to add the tutor and under guardian to the meeting; their consent to the sale, along with that of the five friends or relatives, being also required. The section also demands, that those who make the declaration it ordains, should be “duly sworn to declare the truth, the whole truth and nothing but the truth,” a solemnity which gives their proceedings at least much the character and authenticity of an award of arbitrators; and like arbitrators, the members who compose the meeting act under an order of a court, which has complete and entire jurisdiction in the matter submitted to them. This same law, decreeing that the property minors shall be kept unsold ; without such a declaration, it becomes an indispensable preliminary to a sale of their property : and how, let me ask, is this declaration to be had without a meeting of the tutor, under guardian, and five of the nearest relations or friends, by an order or decree of the judge of probates to that effect.
    The practice has been under this law, to hold the proceedings of the persons named in this act, before the parish judge, who generally signs with them, and this must be what the law contemplated. That the judge does this, sitting as a court of probates, is a natural consequence, and the declaration when made, cannot be considered any thing else but a judicial proceeding. To perpetuate the testimony of such a necessary deliberation, or decision, (I care not by what name it be called) it must be submitted to writing, to shew that the court of probates has caused all to be done which the law requires, to render valid the sale of a succession, where minors are concerned. All sales and transfers of real estate, must be made by public acts, or under private signature, and surely, where minors are concerned, the law does and will require all necessary proceedings, to perfect the sale of their real estate and slaves, to be written.
    The 3d sect. of the act of 1811, 3 Martin's Dig. 134, n. 21. says, " nothing contained in the preceding sections shall be construed, in any case, in such a manner as to prevent the sale of minors property, should said sale be necessary, either for the payment of the debts of the estate, or for the division thereof; when there are heirs, who having attained the age of majority, or being emancipated, shall claim their portion of the same. Art. 156, from p. 184, and art. 171, from p. 188, of the Civil Code, are brought forward by the appellant's counsel, to support this authority just given from the act of 1811: and he argues from thence, that the sale must take place under the circumstances described therein; and is good even without the usual formalities.— Allowing for a moment this construction of the law, to be a sound one, does the evidence submitted, shew the situation of Melançon’s estate to have been such as to have made a division impractible ? The extract from the process-verbal, made by the adverse counsel, may leave an inference that there was only one plantation, but cannot be so construed as to be evidence that there was no other land belonging to the succession. It is quoted from the inventory, as lot No. 57, and according to the usual mode of inventorying an estate, by putting the most valuable lots first, leaves a strong inference that there were many lots more valuable. Those indivisible successions, however, being exceptions to the general law, I conceive, before any benefit can be taken of such an exception, evidence must be produced that this case is not to be governed by the common rule.
    My opinion, however is, that a meeting of the family, such as is required in the 15th section of the act of 1811, acting with the judge superintending their deliberations, to keep them within the law, is the proper tribunal to decide if an estate is so circumstanced as to make a sale necessary. The meeting is composed of the nearest friends or relatives, who know all the concerns of the succession, and as the relatives or friends of the heirs, must be supposed best qualified to judge of their interest.
    This is the only true construction: otherwise the first section of the law of 1811, which seems contain the main intention of the legislature in passing it, would be a dead letter; for on any other construction, it would be in the power of the major heir or heirs, in every estate where there are minors, to force a sale, by alleging the estate indivisible.— Whether it be expedient for the estate to be sold, is for the tutor, under guardian and relatives or friends to decide, as ordered by the act of 1811 ; and the law gives them authority in the clauses pressed into service by the learned advocate, to sell if they see fit; and points out the circumstances which demand and require such a decision; making them, however the proper judges to decide what should be done, when sworn and called in to act.
    A demand of some of the major heirs is also required by the third section of the act of 1811, and the articles cited in support of it from the Civil Code.
    
    No demand in this case is proved to have been made, and the presumption follows, that none was ever made.
    The circumstance of several of the major heirs having acted as members of the family meeting, and having recommended the sale. proves no demand of sale; but is, on the contrary, a strong proof that their intention was to proceed in the usual judicial manner, to determine if a sale was needful. The instrument was illegal and faulty, but being essentially necessary, they must suffer the consequence of their own indiscretion and irregular procedure.
    II. The principle attacked by the plaintiff's counsel, is fully decided in the case of Tregre vs. Tregre, 6 Mart. 665, and little more is needful than to refer to it. We find in the margin this summary of the case, made no doubt, by the reporter —" parol evidence cannot be received of the irregularity of the proceedings of a family meeting before the parish judge ; if such proceedings be written in French, they will be set aside." The text is still more explicit, and that part of the decision which relates to the proceedings before the judge, consisting almost entirely of the acts of a meeting of the family, ends in these words :— " but having no doubt that the acts of a judge, presiding as such, to the partition of an estate, and decreeing the adjudication of it according to law, are stamped with the character of judicial proceedings, it is our duty to declare, that unless such proceedings are written in English, as the constitution directs, we are bound to pronounce them void.”
    To me it seems, that this case is exactly in point, and embraces the matter in controversy, in all its points and bearings. That decision, though other matters are decided in it, turns principally on the proceedings of the family meeting having been in French, pronounces them " judicial proceedings," within the purview of the constitution, and declares them void. There are majors and minors among Melançon’s heirs, as in the case of Tregre vs. Tregre. The proceedings of the family meeting filed here are in French, and were made before the parish judge, in his capacity of judge of probates.
    Much has been said of the proceedings of the meeting of a family, being a merely notarial and not a judicial proceeding. Independent of the opinion of the court, in the case last quoted, being in positive contradiction to this notion; the decision in the case of Durnford vs. Seghers' syndics, 7 Martin, 409, contains matter enough to put the question at rest. It regards the proceedings of the meeting of creditors of an insolvent, which are generally had before a notary as judicial proceedings; allowing then, that the judge acts as a notary, pending the proceedings of the family meeting, it does not alter their character. Among the papers filed in this case, however, next, after the meeting of the family, written in French, we find the following order from the court of probates:—
    "Let the foregoing proceedings of the meeting of the family, had before the parish judge of the parish of St. Martin, on this day, the 4th of February, A. D. 1819, be homologated, and the same executed according to its tenor.— Therefore it is ordered, adjudged and decreed, that all the property composing the community, between Charles Melancon, deceased, and Scholastique Bourgeois, his widow, except the negro woman named Sophie, and her child named Etienne, be sold at public auction, in manner and form as recommended by the meeting of the family.” Even without the lights cast on the subject by the decisions in Martin, does not this paper make it sufficiently clear that the family meeting was a judicial proceeding of the judge of the court of probates, not acting as a notary, but in his character of judge ? First, he orders the proceedings to "be homologated, and to be executed conformably to its tenor.” The property of the community is moreover decreed to be sold, “in the manner and form recommended by the meeting of the family;" and as this instrument is void and defective, the sale made by virtue of it is also void, and all obligations made in virtue of it, extinguished.
    The policy of the provision in the constitution is most apparent, and it cannot be intended that it should have any other construction than was designed by congress.
    What the intention of that body was, appears in an “act to enable the people of the territory of Orleans, to form a constitution and state government, and for the admission of said state into the union, on an equal footing with the original states, and for other purposes.” 1 Martin's Dig. 212, 16. “That after the admission of the said territory of Orleans, as a state, into the union, the laws, which such state may pass, shall be promulgated, and its records of every description, shall be preserved, and its judicial and legislative written proceedings, conducted, in the language in which the laws and the judicial and legislative written proceedings of the united states are now published and conducted.” It is notorious that the convention accepted the conditions offered by congress ; so that in construing our constitution, we are to look to the law admitting us into the union, in which, in the portion just extracted, we may discover the intention of the national legislature, to have been to hold out the strongest inducement to the newly acquired population, to become acquainted with the national tongue, and as early as practible, to wear out every mark of difference which might distinguish them from the rest of the American people.
    Is it not the policy of every wise government to destroy all distinctions which operate against the perfect union of its people; and is there one to be found more formidable than that of language ? Men must understand each other before perfect harmony can exist among them; and this can never be the case till the same language prevails.
    A few Germans of Pennsylvania, and perhaps one-third of the population of Louisiana, are all the citizens of the united states, who cannot express themselves freely, and transact all their business in the English language. Whether those people, politically speaking, become acquainted with our language, is a matter of no very vital concern to the grand majority of the nation; but certainly it most nearly regards those people themselves, who cannot, even with all the spirit of liberality mingled in our institutions, come to a full and entire enjoyment of their best rights and privileges, till they speak the English language. Our convention accepted conditions, and engrafted a provision in our constitution, which virtually disqualify all those who do not understand English, for any place in any department of our judiciary. Civil situations under the general government, appointments in our army and navy, all require an acquaintance with English, to discharge the several duties they impose.
    Will not the French population then be the greatest gainers by a change of their language ? Instead of being an isolated people, will they not then arrive at the entire enjoyment of the high prerogatives of American citizens ? Their feelings will become wholly American. They will inspire general confidence, and we will see that worth and gallantry which was of late so distinguished for martial prowess, unfolding new sources of genius and mental excellence, to add to the strength and glory of a great nation. Habits and early prejudices may bind this portion of our fellow citizens to the language of their fathers; but their best interests, commercial and political, must daily lessen their prejudices against the English tongue, if any such prejudices really exist. There are very many enlightened fathers among the population, who speak French, that will not neglect the best interests of the rising generation; and the daily and constant intercourse among all classes, has already so far introduced the English tongue into the state, as to make it every where in very general use. All judges and lawyers speak that language, and it certainly operates no great hardship to have all the written judicial proceedings in it. Add to this that all judges of probates, have always had before their eyes the constitution, laws and decisions which require those proceedings to be in English, and if they failed to act and decree, according to law, and in legal manner and form, their decisions, and all things dependent on them, are an absolute nullity.
    Clamour and detraction have been busy and violent in attacking this court of late, for deciding as they are sworn to do, under the oaths they have taken, that certain proceedings in French were null.
    The constitution, which all should hold sacred and revere, has for the wisest purposes fenced round the judicial authority, in such a way as to keep it sacred and inviolable from the sudden gusts of party and faction, which may assail it. The fearless integrity, and unyielding independence of the judges, must fulfil the noble design contemplated by the constitution, and act the part intended by their creation. One uniform rule of conduct is needful for this high tribunal, and essential to the best interests of the state. The patient may recoil at the necessity which lops off a decayed or mortified member, but the surgeon must go on fearlessly, and finish the operation. Let it be firmly and promptly decided, that the letter and spirit of the constitution shall be adhered to, and we will daily hear less and less of the hardship of obeying the laws; a hardship, however, which only springs from the neglect or caprice of its functionaries. If things of this kind have been illegally done in settling successions, it is certainly a singular application to this high tribunal, to descend from its high duties, to cobble up the acts and decrees of interior judges. The laws exact obedience, and experience in all ages and nations proves that their strict execution is ever attended with the most beneficial results.
    III. That the price of a thing sold at a sale, which is declared illegal, null and void, should be recoverable, is a strange doctrine.
    The decisions from Martin hitherto noticed, go to prove the sale, without the necessary formalities, void; but the civil law authorities all concur in declaring sales of this kind absolutely null. In Domat, tit. 2, sec. 7. art. 4, we find, Les mineurs, ceux qui sont interdit et autres personnes qui n’ont pas la disposition de leurs biens, ne peuvent les vendre, et leurs ventes sont nulles, si elles n'ont èté faites dans les formes.
    
    In a note to art. 6, of the same section, regarding the estates of minors, it is said, ils peuvent etre vendus aussi par autorité du tutear ou curateur avec l'avis de parens; mais en re dernier cas les mineurs peuvent se faire restituer s'ils sont leses.
    
    Other authorities, viz. 2 La clef des lois Romaines, 728, Napoleon Code, art. 452. Idem. art. 457, all go to establish the same doctrine.
    The good faith of the defendant is attacked, because, forsooth, he refuses to pay a large sum for a tract of land, which still in the sight of the law, virtually and absolutely belongs to those who sold it. True it is, the plaintiffs hold a deed null and void in law, in which they are bound to pay. The sale being made by the parish judge, the defendant had much reason to give due faith and credit to the acts of the judge; but if those acts and proceedings were illegal and unconstitutional, is it not absurd to say, they shall be void with regard to all the parties, except that party who is most materially effected by that nullity?
    A number of authorities are cited to prove, not that a nullity can be enforced, but that the buyer, in ordinary cases, cannot refuse payment of the price of the thing sold, though it be the property of a third person, when it is delivered and warranted, unless he be actually evicted by the title of a third person; or after a suit instituted by such third person, and even in the latter case, he will have to pay his obligation, if the seller give security against the claimant. The whole law is laid down in the case cited from 7 Martin, 223, and alludes to claims of third persons not parties to the contract, and cannot certainly affect this case.
    
      A tract of land has been sold by the decree of a family meeting, which belongs to the succession; the sale was made by the parish judge, and for want of legal requisites, becomes null and void. The land still belongs to the succession, to the widow, the major heirs, and the minor heirs of Melançon; and the obligation given, in consideration of that sale, as a price of property, which is still in the vendors, must certainly be extinguished.
    If we are liable to damages, or ought to make compensation for the use had of the property, it will be time to discuss that point when something of the sort is required of us.
    We do not complain of Melançon's heirs having sold us the property of a third person; or at least, we do not rely on that to annul our obligation, but we do contend, they cannot force us to pay the amount claimed as the price of a thing which is still theirs.
    It is said, it was the defendant’s business to bring a suit to annul the sale, if it were really defective, and he wished it annulled. The defect, however, goes to the very essence and origin of the contract. The defendant was advised, as he states in his answer, that the sale was null in law, and properly conceived himself absolved from his obligation, without the vexation and expence of a lawsuit.
    A last attempt is made, to prove that this sale, though null, is a mere relative nullity, and as such can be taken advantage of by the minors only. This view of the case cannot prevail; for when the original sale, the single act, which at the same time, transfers the property, and binds the defendant, is annulled; that nullity is so active, that it becomes absolute. A slight notice of the authorities adduced to bolster up this singular opinion, will close my argument.
    The first authority is from Pothier, Traité du Contrat de vente, which goes to shew, what we never thought of denying; to wit, that a purchase, made by the tutor of his ward’s property, cannot be set aside, but at the will of the minor; and can be made valid by his confirmation. This would be good authority in a controversy between a tutor and his pupil; but has nothing to do with the constitution of this state, and the rule of succession to persons who are not acting as tutors or curators. Several of the gentleman’s authorities from Jurisprudence du Code Civil are to the same effect.
   Martin, J.

The defendant was sued for the price of a tract of land purchased by him, at the auction of the property of the estate of the deceased. He pleaded the general issue; averring, that one Broussart forbid the sale, &c., and that the judicial proceedings in the inventory and sale of the property, were carried on and conducted in the French language.

The district court was of opinion, that the plaintiffs had not substantiated their claim, and gave judgment for the defendant. They appealed.

The statement of facts shews, that the plaintiffs gave in evidence, an extract of the process-verbal of the sale of the property of the estate, subscribed by the defendant and one Latiolais, as his surety, whereby it appears that the property was struck to him: also, the proceedings of a family meeting, recommending the sale, and the decree of the judge authorising it; the process-verbal and the proceedings of the family meeting are in the French language and the decree is in the English.

The parish judge deposed, that immediately after the sale, the defendant took possession of and still retains the estate, and has made a crop thereon.

The plaintiffs' counsel contends, that no family meeting was necessary; that the proceedings of such a meeting, in the present case, may be recorded in, the French language; that admitting that a meeting was necessary, and its proceedings could not be recorded in French, the objection cannot avail the defendant.

Our task may be shortened by taking up the last proposition first.

The Civil Code requires, that the property real and personal, of minors, be sold by the tutor, Civil Code, 68, art. 56, and he must be authorised by the judge, id. 57. The act of 1811 provides, that this sale shall not take place, unless a certain number of the relatives recommend it. 3 Martin's Dig. 132.

Hence, the sale is not necessarily to be made by the judge, but must be by the tutor, and through an auctioneer; for minors property must so be sold; but certain formalities must precede it.

Here then, the process-verbal of sale is, in my opinion, the evidence of the sale by the tutor, through an auctioneer, i. e. through the parish judge, in his capacity of an auctioneer: and in parishes in which there are other auctioneers than the judge, the assistance of the latter is needless in the sale; though he must authorise it. I consider then, this process-verbal as the act of an auctioneer, evidencing a contract made by his ministry; and such a contract may be recorded in the French language.

I therefore conclude, that the plea of the general issue is supported.

Admitting that the family meeting was required by law, and that its proceedings, if recorded in the French language, are a nullity, the case cannot be better for the defendant, than if there had been no such meeting ; no recommendation by any of the minor's relations.

The want of such a meeting or recommendation cannot be alleged to avoid a sale on the part of the vendee.

The formalities which the law has established to protect minors, in the sale of their estates, are exclusively established for their benefit. If they are omitted, they alone can avail themselves of the omission and avoid the sale. But the vendee cannot refuse complying with his obligation, because some of the formalities which the law requires, have not been attended to. Pothier, Vente, n. 14.

There is not any evidence to support the allegation, that Broussart forbid the sale, &c.

The use of the French language in the inventory, and the proceedings relating thereto, cannot certainly affect the sale.

I think the district judge erred. We ought to reverse his judgment, and ours ought to be for the plaintiffs, with costs of suit in both courts.

Mathews, J.

As the important question relative to the effect of proceedings had by family meetings, for the purpose of giving advice in the disposition of the property of minors, is not decided by this opinion, I deem it unnecessary further to investigate this case; being satisfied with the points adjudged therein, for the reasons adduced.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and this court proceeding to give the judgment, which in their opinion, ought to have been given below, it is ordered, adjudged and decreed, that there be judgment for the plaintiffs with costs in both courts.

Bullard for plaintiffs, Thomas for defendant.  