
    Blanchard, Executor v. Lockett.
    Defendant purchased, with two other persons, certain ground for the purpose of dividingit into lots and re-selling it, taking the title in his own name, and giving a counter-letter binding himself to sell and account to his co-proprietors. One of the latter executed his notes, which were endorsed by the defendant and discounted, and the proceeds applied on account of the maker towards paying his portion of the price of the land. The defendant was afterwards obliged as endorser to pay the notes. The maker having died, defendant and his surviving co-propriotor agreed with the executors of the deceased that the whole property should be sold by the register of wills, and at the sale defendant became the purchaser. The executor having demanded from the purchaser the whole price of an undivided third, alleging that purchasers at probate sales cannot compensate against the price claims due them by the deceased, and that for his advances defendant was only an ordinary creditor of the succession, which was insolvent: KeU, that defendant had the right to retain any advances made by him out of the proceeds of the property in his hands. C. C. 2992.
    from the Third District Court of New Orleans, Kennedy, J.
    
      Le Gardeur, for the appellant.
    
      Goold and Micou, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

This case has already been before the Supreme Court, and was remanded for the introduction of evidence, which the court below had refused to admit. The facts are fully stated in the opinion of the court, in 4 Rob. 370.

The controversy grew out of a real estate speculation, entered into between John A. Merle, Theodore Nicolet, and the defendant. The subject was a lot of ground and improvements, and the price $30,000. The property was purchased in the name of the defendant, who bound himself to divide it into lots, effect sales thereof, and account to Merle and Nicolet, who took a counter-letter which was deposited in the office of Grima, the notary before whom the sale was passed. Pending the negociation, Nicolet informed the defendant that Jules Ze Blanc owned an interest in the property, which it was desirable to extinguish. For the purpose of purchasing that interest, Nicolet made notes for $10,000,.which were endorsed by the defendant. Those notes were discounted to the amount of $6,900, and the proceeds were paid to Jules Be Blanc for account of Nicolet. The defendant was subsequently obliged, as endorser, to pay those notes. Nicolet died, and in order to settle his rights in this property, Merle and the defendant agreed with his executor that the register of wills should make sale of the whole. The defendant became the purchaser at the price of $20,000. The executor now demands the whole price of an undivided third, alleging that purchasers at probate sale cannot compensate claims due them by the deceased, and that, for any advances the defendant has made, he is an ordinary creditor of the succession, which is shown to be insolvent. The judgment in the court below was in favor of the defendant, and the plaintiff appealed.

The legal title to the whole of the property was in the defendant, and he could not have been divested of it against his consent, without a decree of court on a proper showing. The counter-letter gave Nicolet nothing more than ah equitable claim to one-third of the nett proceeds of the adventure, which it. authorized the defendant to close. He could have transferred no more in his life-time, and nothing more passed to his legal representatives, at his death. Lockett had tirade advances under the mandate, and had the right to retain those advances out of the proceeds of the property in his hands. Civil Code, art. 2992. It is contended that, the share of Nicolet was no longer in his hands, after he consented that it should be sold by the register of wills with his own. Such is not the necessary consequence of his assent. Believing that, under the power he held, he could not sell the property himself, after the death of Nicolet, he agreed that it should all be sold at auction,- as the only means of closing the adventure. It would be inequitable to consider this involuntary change in the execution of the mandate, as implying on his partan abandonment of vested rights. He might have retracted his assent at any time ; the legal title was still in him on the public records of the country; and if, before the adjudication, a third person had purchased from him in good faith, that purchaser would not have been affected by the latent equities existing between his vendor and the succession of Nicolet. Hyams v. Richardson, 1 Annual Rep. 286.

There is no error in the judgment appealed from.

Judgment affirmed. 
      
       Eustis, C. J. did not sit on the trial of this case, having been engaged as counsel.
     