
    
      RAGUET'S HEIRS vs. BARRON.
    
    Appeal from the court of probates of the parish and city of New Orleans.
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   Porter, J.

delivered the opinion of the court The defendant purchased immoveable property at the sale of the estate of the ancestor of the plaintiffs. The term of the sale were one and two years credit in notes satisfactorily indorsed, with special mortgage until final payment ⅝

Having failed to comply with'his agreemen a rule was taken on him to shew cause why he s^ou^ not be compelled to perform it,to whic\j he answered, that the family meeting, in viftfie of whose deliberations the property had béeh to he sold, was composed óf rélatións who had an interest in the matter on which they decided; that the sale was, consequently, made without the legal formalities, and the tide to the respondent defective.

The court confirmed by its decree the correctness of the defence, and the plaintiffs appealed.

Before noticing the merits, an objection made by the plaintiffs must be disposed of. They contend the court of probates had no jurisdiction of the matter; that it was through error they went there; and, that the defect being onera-tione materias, consent cannot cure it.

We think the plaintiffs were right in. their first bpihion on this subject, and wrong in their sécond. The court óf probátes has jurisdiction to Compel purchasers to make'their Contract complete by affixing their signatures and giving their note. The plaintiffs have argued this point as if the defendant had accepted the title, given his obligations, and that this wasan action to enforce their payment, when the application is merely to make the contract, which ■⅜⅛⅛ inchóate by the biddings complete by exe-curing the writings necéssary to rénder it so.—

The court1 having power to order the sale, . • . has, as a necessary incident, the power to «lake these sales in a legal manner.

The family meeting was composed, in part* of co-heirs of the minor; and it is contended^ that as they were joint proprietors with her,' they could not legally deliberate and decide on the propriety of selling the property.

This case arose previous to the late act of the legislature on this subject, and must be decided by the law as it then stood.

That law contained no positive provision which excluded the nearest relations who are joint owners with the minor. But the appel-lee contends there exists one in the reason of the thing; that those who have an interest in the property cannot be impartial judges of the propriety of ^felling it, because their opinion must be more or less influenced by the consideration of the effect the sale will have on their own interests.

We were struck on the argument with the force of the objection, but our reflections since, have much weakened the influence we were first disposed to give it. The law having declared that heirs either major, or minor, cannot be compelled to remain owners, in common it follows they cannot be influenced by the desire to retard or hasten the partition, for they have no power over it. In the manner in which the partition should be made they seem to be equally without an avderse interest to the minor, for if that property is tobe divided in kind, whatever influence the division may have on a portion of the property partaken it will have on the other, more particularly as the lots must be drawn for, and chance decides to which of the heirs each lot must fall. If on the contrary it is to be sold together, all would share alike in the profit or the loss arising from the sale. There is then no conceivable interest intheheirs of full age giving false and pernicious advice except that suggested by counsel in the written argument, that being owners in part, heymight be anxious to sell because they could f buy to more advantage than strangers, who! would be obliged to furnish the whole price of| the property, while they would only have to pay that portion of which they were not own-| ers. But the interest is so remote and uncertain, where the sale is to be made on credit,^ that we cannot, on that ground, pronounce thof mcompetencv of the co-heirs to form a family r J meeting. '

The late act of the legislature, excluding persons such as tfyose who formed the family meeting in this instance, strengthens this conclusion. If the law, previous to its passage, was as it is contended by the appellee, the act was vain and unnecessary. It is true that the introduction of a provision by statute in this country, is not, as has been properly urged, conclusive evidence that the law,previous to the enactment, was otherwise, but in doubtful cases it creates a presumption it was so, and the weight which properly belongs to the presumption, cannot be disregarded by a court of justice.

It is therefore ordered, adjudged, and decreed1 that the judgment of the district court be annulled, avoided and reversed: And it is further ordered, adjudged, and decreed, that the defendant do, within ten days from the rendition of this judgment, comply with the contract entered into by him in bidding for the property at the sale of the estate of the ancestors of the plaintiffs, or, that in default thereof, a writ of d©siringas issue to compel him there* and it is further ordered, that he pay costs ' ’ * J ' in both courts.

Seghers for the plaintiffs ,Pierce for the defendant.  