
    Succession of Joseph Jewell.
    Where the purchaser of land failed to give his notes according to the terms of sale, he cannot set up the prescription of five years.
    A debtor said he would “ settle provided his claims were allowed.” Held: insufficient to interrupt prescription.
    APPEAL ' from the District Court, Ninth District, Parish of Pointe Coupee, ' Gooley, J.
    
      W. E. Gooley, for appellant. JProvosty, for appellee.
   Vooehies, J.

The opponent is appellant from a judgment rejecting her claim against the succession of the late Joseph Jewell.

The appellee has filed a motion to dismiss the appeal on grounds which we consider untenable. The addition of the word “administratrix” to the appellant’s name by the Clerk may be treated as mere surplusage. Her motion for the appeal, and the bond executed by her, sufficiently indicate the capacity in which she has taken this appeal.

The facts disclosed by the record are in substance these: At a judicial sale of the estate of the late William B. Faulkner, of which the appellant, his widow, was the administratrix, made on the 1st of July, 1848, a tract of land was adjudicated to Joseph Jewell for tho price of 8768, payable, according to the terms of sale, at one, two and three years from the date thereof; the purchaser to give his notes, with good security, and to bear ten per cent, interest from maturity until paid.

Jewell signed the proces verbal of adjudication, but did not comply with the terms of sale by giving his notes. No steps appear to have been taken by the appellant, during her administration, to compel him either to do so, or to pay the price of adjudication. In the final settlement of the estate of her deceased husband, she was charged with the amount of this adjudication, which she now claims as a subrogee of his estate.

The appellee relies on the prescription of five and ten years as a bar to the action.

The purchaser having failed to comply with the terms of his contract, by giving his promissory notes, we are of opinion that the only prescription applicable is the prescription of ten years. See the case of Burton v. Chancy, 8 An., 338. Tho Widow Faulkner filed her opposition to the tableau in September, 18B5. It is, therefore, clear that the third instalment of the price of the adjudication cannot be extinguished by prescription. But in regard to tho others it is different, unless an interruption has taken place, as contended for by the appellant.

According to the ruling of this court in the case of Lackey v. Macmurdo, 9 An., 16, we think the acknowledgment of Joseph Jewell, during his lifetime, as shown by the testimony, is insufficient to bind his estate. The substance of that acknowledgment appears to be, that he would “settle, provided his claims were allowed.” What those claims were, it is true, does not appear. But it is evident that his acknowledgment, qualified as it is, amounts at most to this, that he was willing to settle the price of adjudication on condition that his claims against the estate of Faulkner, would be allowed in compensation; in other words, he did not acknowledge his indebtedness to the appellant for the amount of her claims.

It is, therefore, ordered and decreed, the judgment of the court below be avoided and reversed, that the plea of prescription be maintained as to the first two instalments of the price of the adjudication, and overruled in the last in-stalment of the price, viz: the sum of $266, with ten per cent, interest from the 1st July, 1846, and that the case be remanded for further proceeding to be had herein according to law.  