
    Samuel W. Oakey v. James Drummond.
    A purchaser of land, who suffers it to be seized and sold as his own, who buys it in and sells it again, cannot be relieved from paying the purchase money .to his vendor, on the ground that there are encumbrances upon it.
    from the Third District Court of New Orleans, Kennedy, J.
    
      Benjamin and Micou, for plaintiff.
    
      Mott, for defendant.
   By the court:

Rost, J.

It is unnecessary to inquire into all the questions raised by the defendant in this case. He suffered the land he had purchased from the plaintiff to be taken in execution and sold as Ms own" property, to pay repairs made to the levee in front of it. The certificate of mortgages, read by the sheriff at the sale, had exclusive reference to the mortgages standing on the property, in his name, and expressly mentioned the mortgage in favor of the plaintiff, to secure the price of the land. He was present at the sale, and the property was adjudged on his bid; but he caused it to be placed in the name of his nephew, a young man lately come to the country, who, one of the witnesses thinks, was not of age. He took from his nephew, at the same time, a power of attorney, under which he has since sold the land with the boundaries mentioned in the sale of the plaintiff to Mm, at a profit of $400 on the price he was to pay.

There is little doubt that the land was purchased by himself, and that the title given to his nephew was a simulation; but, if the sale had been to a purchaser in good faith, the defence could not be sustained. The defendant being present at the sale, and bidding, acknowledged himself-in possession as owner; and the sale, under those circumstances, must be considered as having been made by himself. If the adjudication is set aside, he is bound to return the land, and, as he has placed it out of his power to do so, he would be enabled to commit a fraud, if he was dispensed from paying the price. It is unnecessary to inquire whether the defendant may not, under certain circumstances, rightfully claim hereafter a diminution of the price.

Having parted with the title, and no claim being made against him, he has no right of action against the plaintiff.

It being proved that the land is now free from mortgages, the judgment in favor of the plaintiff must be affirmed.

Judgment affirmed, with costs.  