
    ZANICO vs. HABINE.
    East'n District.
    March, 1818.
    Appeal from the court of the first district.
    The plaintiff, as executrix to her late husband, caused the property of his estate to be sold at public auction, under the anthority and directions of the court of probates, when the defendant, through an agent, bid for a negro man, who was adjudged her, and immediately delivered to her said agent, who directed him to go to the defendant's. The negro, on his way, made his escape, and, being pursued, com- mitted an assault, with intent to murder, for which he was tried and condemned to death, but afterwards pardoned and released. The East'n. District. defendant having refused to receive him, the present suit was brought against her.
    
      The processverbal of the sale of property sold by the register of wills is evidence of the sale, and no act under the signatures of the parties is necessary to perfect it.
    The vendeecannot demand the rescission of the sale, on account of a capital crime committed by the slave im- mediately after the sale. the sale.
    
      She resisted the plaintiff’s demand, on two grounds:-1. that there was only an adjudication of the slave, but no sale-2. if there was a sale, it ought to be annulled, on account of a redhibitory vice in the slave.
    There was judgment for the plaintiff, and the defendant appealed.
    
      Moreau, for the plaintiff.
    The defendant, in the district court, contended that there was no sale, because our statute requires all sales of slaves to be made by authentic act, or under private signature, declares all verbal ones null, and forbids testimonial proof of them to be admitted. Civ. Code, 344, art. 2. But, it is clear, that this article relates only to voluntary sales, made by the owner, but does not extend, to forced sales, or those made under the authority of a court of justice, or by auction. Forced sales are made under certain formalities, particularly provided for by law. Id. 490, art. 1, 1805, 26, § 14 and 15. The code provides that the seizure or forced sale of a debtor’s goods transfers the property of the thing seized to the vendee. It would, therefore, be absurd to hold that the vendee is not bound by the adjudication made by the sheriff. The principle is precisely the same, in sales made at auction. Auctioneers are required by law, immediately after the sale, to deliver to the purchaser a memorandum of the sale and purchase, which is to be registered. 1805, 4, § 12. The object of the law, in this respect, is to provide for the vendee an evidence of the sale; but it is not required to give it validity.
    The rule must be the same in sales of the estates of minors or deceased persons. Civ. Code, 69, art. 57, 169, art. 105, 175, art. 128, The formalities attending the sales made by executors are particularly provided for. Id. 247, art. 174. According to these, the plaintiff has caused the sale to be made by the register of wills, under the authority of the court of probates, at public auction, after the requisite notice. The sale ought therefore to be binding on the vendee, as if it had been made by the sheriff or an auctioneer. The process verbal of the sale, drawn by the register of wills, and deposited in his office, is the legal evidence of the sale, and no other writing was required to be drawn, the vendee being at all times entitled to an extract of that part of the process verbal, which relates to the sale made to him.
    This is perfectly in conformity with the Span- ish law. The adjudication or public sale of seized property, or of that of minors, el remate, was made by auction. Curia Philipica, 149, n. 1 and 3-and the mode was regulated by usage, in different places. Id. n. 4. Febrero Cinco Juicios, 3, 2, § 5, n. 301.
    An adjudication, attended with the requisite formalities, was equivalent to a definitive sale, and transferred the property equally as well as if there had been a firm contract entered into by the parties. Curia Phil. 150. n. 7. Febrero, id. n. 305.
    The acceptance of it by the last bidder rendered it definitive, and discharged the anterior bidder. Curia Phil. 150, art. 6-and the last bidder might instantly be compelled to pay. Febrero, id. n. 332. Recopilacion, 5, 16, 2.
    The defendant’s agent, in this case, accepted the adjudication, since he received from the register the slave sold. From that moment she became debtor of the price, and the slave was at her risk. 1 Repert. de Jurisp. 116, n. 6. Verbo adjudication.
    
    But, admitting that the adjudication alone, does not constitute a sale, the bid made by the defendant binds her to pay damages, if the defendant refused to stand to the sale. It wrought an injury to the plaintiff; and every act which works an injury, gives rise to an action for damages. Every one is liable to an action, who refuses to comply with an engagement entered into. Civ. code, 321, art. 16, 269, art. 42.
    The bid of the defendant over the anterior bidder, and the subsequent acceptance of the slave, discharged this anterior bidder from his obligation to take the negro, at the price he had offered.
    II. The defendant, cannot avail herself of the offence committed by the slave, in order to have the sale rescinded: because judicial sales are not liable to rescission, on account of redhibitory vices, Code Civ. 359, art. 74; and because, although it be true, that the commission of a capital crime, be a ground of rescission, id. 358, art. 69, the crime must have been committed, at the time of the sale. Id. art. 76, Curia Phillipica, 1, 13, n 25.
    The discovery of a redhibitory vice, within three days after the sale, is only a presumption of its anterior existence, but in the present case, the conduct of the slave, is proven by uncontradicted witnesses, to have been irreproachable.
    Livingston for the defendant.
    The law is express, that verbal sales of slaves shall be void-if then, there was no sale, there can be no action for the price-but by the statement of facts, it appears, that nothing was written or signed by the parties.
    It is said however, that this being a judicial sale, no writing is required, and the Code, 490, art. 1, is quoted in support of this doctrine; but first, that article relates only to goods sold by forced sale, under a judgment-not to a voluntary sale by an executor or administrator, for the purpose of settling an estate-and secondly, even if it applied to the case, it will not avail the plaintiff, because, so far from exempting such sales from the rules prescribed in cases of voluntary transfers, it prescribes additional formalities, for which it refers to special laws, made to regulate such sales-and the plaintiff’s counsel, is kind enough to indicate the page and book, in which they are to be found, and where the court will at once perceive, that a conveyance in writing is at least as necessary in that species of judicial sale, as in a voluntary one. The plaintiff’s argument is certainly erroneous, where it asserts, that the code declares that property sold under seizure, is transferred, “parle seul fait de Vadjudication.” The article says, that the seizure and forced sale of goods and chattels, transfers the property of the thing seized, to the purchaser, that is when the sale is complete, certainly not before; it would not therefore, be quite so ridiculous, as the plaintiff's counsel supposes, to require a sale in writing, in order to effect the transfer of real property, even under an execution.
    But independent of authority, what good reason can be given, that would induce a reasonable man to believe, that the legislature intended to exempt judicial, or any other sales from the operation of the general rules, as to the transfer of real property? The danger of fraud and perjury, (which were the principal evils intended to be guarded against, by establishing those rules) are as great in this species of sale, as in any other: nor do I perceive a single reason, why verbal testimony should be refused in the one case, and admitted in the other-the words in the code, are general and prohibitory; "all sales of slaves” must be made in writing; "all verbal sales of these things shall be null.” If any exception exist, it must be explicitly shewn.
    The law, regulating sales at auction, is relied on as furnishing this exception; if, however, this should contain any provision, incompatible with the code, (which I am unable to discover) it is certainly as being anterior repealed by it and it is conclusive also against this argument, that the auctioneer’s certificate was never, either tendered or accepted.
    I have hitherto, considered this as a judicial sale, but in fact it has no one feature of it. It is the case of an executor, having the seizure of the estate, and proceeding to sell. Art. 174. The code only directs, that such a sale shall be at auction, under the authority of the parish judge; leaving all other formalities to be regulated by the general law, and I pray the court to observe, that it is the executor who sells, not the judge, the statute says “ when the testamentary executor has the seizure, &c. he must proceed to sell,” &c. Civ. Code 244. art. 174. Therefore, before the sale could be complete, there must have been an act of sale, between the executor and the purchaser.
    Spanish authorities are resorted to, to shew that an adjudication was sufficient to transfer property: this I do not deny, but I say that the adjudication must first be complete, and that it was never complete, till the proces verbal was signed as well by the purchaser, as the officer making the sale, and as the plaintiff’s counsel, seems to rely on the usage of the place, I refer to the recollection of the court, whether among the numerous Spanish records, that have been submitted to them, they have ever seen the proces verbal, of a sale of real estate, that was not signed by the parties.
    H. The second ground on which the defendant relies, is that the negro had two redhibitory defects: running away and being guilty of a capital crime; both these were manifested instantly after the adjudication, and the law says. Civ. Code, 358, art. 76, that in such case, they shall be presumed to have existed before the sale, or at the time it was made-but this presumption, the plaintiff thinks, is counteracted by proof of the negro having borne a good character before; this, however, cannot be the intent of the law; the expression is not that it shall he prima facie evidence of the defect, in which case it might be counteracted by other proof, but it shall be presumed. Now, I know of no proof that can counteract that which the law imperatively orders the judge to presume, or in other words, to take for granted. Besides, what is it that is to be presumed? Not that he had been guilty of the several redhibitory crimes, but that the vice existed in the mind, or temper, (see art. 78) prior to the sale. All the proof in the world, therefore, on this subject, cannot be received against a presumption created by created by law. Such proof can only be negative; the witnesses never knew of any vice or crime-he may have had them, he may even have committed them, and the witnesses know nothing about it-but what is conclusive on this point is, that if the defect or vice exist at the time of sale, it is sufficient to annul it; and it shall be presumed, if the running away, or committing the crime, happen within three days after the sale.
    The objection, that the redhibitory action will not lie, in case of a judicial sale, it is thought will not avail the plaintiff:
    1. Because this has been shewn, not to be a judicial sale;
    
      2. Because, though in a judicial sale, after it were complete, the purchaser might lose his redhibitory action, yet that principle would never compel him to complete a sale, after he had discovered a radical vice in the thing bought.
   Derbigny, J.

delivered the opinion of the court. On the subject of sales, our code contains this general disposition: “all sales of immoveable property or slaves, shall be made by authentic acts, or under private signature. All verbal sales of any of these things shall be null, as well for third persons as for contracting parties themselves; and the testimonial proof of them shall not be admitted." Civ. Code, 344, art. 2.

The appellee maintains that this provision is not applicable to judicial sales, of which he contends that this is one. The appellant insists upon its embracing all sorts of sales, public as well as private, and calls on the appellee to shew any exception to that general rule.

To decide this point, we are unaided by precedents or by commentators, this being a provision peculiar to our laws. Our inquiry shall, therefore, be confined within a narrow circle.

Our law requires all sales of real estates or slaves to be made by authentic act or under private signature, and pronounces all verbal sales of such things to be null. We believe that this provision extends to all sales, public as well as private. But, is it necessary that the authentic act of sale should, in every case, bear the signatures of the parties? We think not. In sales made by public officers, the written instrument drawn by them is surely an authentic act: yet, in sheriff's sales, at least, the written acceptance of the purchaser is not required. Is there any more necessity for it in sales made by auctioneers, under the authorization of justice? Is there more occasion for it in a case like this, where the register of the court of probates sells property at auction, under a decree of that court? We think not-officers authorized by law to make public sales are certainly invested with the necessary power to certify those sales to the world, whether the parties do or do not chuse to acknowledge them under their hand. The public officer may there be considered as the medium through which the parties contract, and his act as the act of both.

If we inquire into the particular rules which are prescribed to auctioneers generally, we find that it is made their duty, "immediately after the sale, to deliver to the purchaser a memorandum of the sale and purchase, designating the object and day, so that the purchaser may cause the same to be registered, according to law, in the office of the recorder of mortgages." Here then is a simple memorandum, under the hand of the auctioneer, considered by the law as complete evidence of the sale and purchase, and so far assimilated to an authentic act of sale as to be admissible among the records of the keeper of mortgages. Will it be pretended that the record of the clerk of the court of probates, certifying a sale made by order of that court, is inferior in dignity to the memorandum of an auctioneer? That cannot be maintained. We think with the district judge, that the process verbal of sale, which the register writes on such occasions, in conformity to the act of the 3d of June, 1806, is evidence of its contents, without the written acceptance of the purchaser.

II. We now come to the second plea of the appellant, to wit, the existence of a redhibitory vice in the property sold.

The success of this plea rests upon the fol- lowing circumstance: immediately after the sale and delivery, this slave, instead of going where the appellant's agent sent him ran off was pursued, and committed an assault, for which he was condemned to death, and afterwards pardoned.

From this, the appellant concludes, that the slave had a redhibitory vice, previous to the adjudication. To support this allegation, he relies on the following article of our code, as governing this case, to the exclusion of all testimony : "If the defect appears immediately after the sale, or within the three following days, it shall be presumed that said defect existed before the sale, or at the time it was made." This provision seems to have been intended for cases of latent bodily defects, the origin of East'n which is uncertain ; but as the appellant insists upon its applicability to his case, let us see how it will bear the application.

The vice, if any existed, was one of temper and disposition. Those are limited to three sorts : "having been guilty of some capital crime, being addicted to robbery, or in the habit of running away." The first vice does not admit of the application of the rule : that a man has been guilty of a capital crime, is not to be presumed from his subsequent conduct: the law does not speak of any such thing as the habit of committing crimes, hut of a crime committed. The second vice has nothing to do with this case. The third and last is the habit of running away. This slave, it is said, ran off, instead of going where the appellant’s agent had told him to go. Must this be received as a legal presumption that he was in the habit of running away? Shall a slave, who changes master, and runs off, to avoid going with him, be presumed to be in the habit of running away? Surely no such presumption can arise from this fact. Supposing, then, the article relied on to be at all applicable to this kind of vice, still the fact in this case does not authorize the presumption, so far as to render it unnecessary to support it by other proof, or to exclude contrary testimony. The district judge, therefore, acted correctly in admitting testimony as to the character of the slave; and that testimony having been perfectly satisfactory on the part of the plaintiff, the plea of the defendant must fail.

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