
    Molinari et al. v. Fernandez, Tutrix.
    Art. 368 of the Civil Code, which authorises a husband, though a minor, to apirear in Court iri all cases, is an innovation on the former laws on the subject, and forms an exception to the' dispositions of arts. 376, 377, 1235,. and 1236 of that Code; and these articles now apply only to eases of ordinary emancipation. A similar power is conferred upon tho wife who is under age, provided she ho authorised by her husband, by sec. 12 of the stafe. of 25 March, IS28, amending art. 999 of the Code of Practice.
    Whore a mother, who had forfeited the natural tutorship of her children by marrying a second time without having been legally authorised to retain it, after tho death of a tutor appoint., ed in her place and of her second husband, is re-appointed tutrix by the advice of tho family meeting, she will not be bound to give bond. The rule exempting the father or mother from giving security before acting as tutor or tutrix, isa general one, to which an appointment under such Circumstances forms no exception. Per Curiam: Under art. 950 of the Code of Practice, the judge might have- appointed her tutrix without the a’dvice of a family meet" ing; the submission of her application to such a meeting, and its decree declaring her war' thy of the trust, can impose no additional burthens on her.
    íhc designation of a notary before whom the inventory and appraisement are to be made, is only nee'essavy where a partition Is to he made in hind, in cases of Imitation it is unnecessary; in such cases an appraisement made before tbs sale, in the mode usual in seizures under execution, is sufficient.
    APPEAL from the First District Certil't of New Orleans, McHenry, J. Antoine Molinari died in 1833, leaving three minor children: Antoine, Theresa, and Paul. His widow was confirmed as the natural tutrix of these' minors. She proceeded to settle the estate, and on its final liquidation the' only property left for the children was a house in Hospital street, in this city. The widow afterwards contracted a second marriage with Rufino Fernandez, and afterwards surrendered her tutorship, and caused a dative tutor to be appointed, agreeably to the forms required by law in such cases. Her second husband, Fernandez, died in September, 1843; and shortly after, the tutorship having become vacant, Mrs. Fernandez was appointed, on the recommendation of a family meeting, and confirmed as natural tutrix of said minors Molinari. Sho took the oath required, by law, but gave no bond, and has since acted as the legal representative of said minors, in all matters appertaining to the administration of their estate. The two eldest children, Antoine and Theresa, having been emancipated by marriage, instituted suit against Mrs. Fernandez, as tutrix .of their brother Paul J. Molinari, for a partition. She answered in her capacity of tutrix, but made' no defence; she admitted the plaintiffs’ right to obtain the partition by licitation, as prayed for, and submitted the Case to the judge, who gave judgment accordingly. The property was advertised, appraised, and, at the sale, adjudicated to Omer Gaillard, for a sum considerably exceeding the appraisement; but this purchaser now refuses to comply with the terms of sale. A rule was taken against him, which was made absoluto, and he has appealed.
    
      
      S. L'. Johnson, for the appellant-.
    I. Mrs. Fernandez was not duly qualified to represent, as tutrix, the minor Paul J. Molinari. The children of the first marriage would have had a prior legal mortgage on the property of their mother, if she had-not forfeited the tutorship ; by her fault thei-f mortgage is now inferior to that of the children of the second marriage. Under these circumstances,- it-is contended that she is not duly qualified-as tutrix of the minor, Paul J. Molinari; that she must give security like any other dative tutor, in order to be qualified; and that the exemption, in article 330, of the father and mother from giving security, avails them only when they hold the tutorship by right, the only species of tutorship which the Code supposes the father and mother to hold. G. C. 272, 288, 330: Tutorship of Mossy, 3 Rob. 390: Article 951 of the Code of Practice, would seem to favor the idea that she might have claimed the tutorship by right;- but it would not authorise her to claim the appointment in a case like the present, where, by her neglect, she has incurred the penalty of art. 272 of the Civil Code, and has given the children of the second husband,, ii prior mortgage on all her property, even that whicli she may have derived from-the first community.
    Moreover, she did'not claim the tutorship of right, but accepted the dative tutorship as it was conferred upon-her. The question is, whether the exemption in art. 330 of- the father and mother from giving security, can avail the mother, when dative tutrix. Upon this point, there appears to be no authority. It was not raised in the ease of the Tutorship of Mossy, beeauso,-as we are inj formed, the maternal grand-father of- those minors, offered to be seourity for his daughter, as their tutrix. In the French Code, security is not required from tutors of any kind. Art. 288 clearly shows that the framers of our Civil Code did not contemplate the father or the morlher’s be-coming a dative tutor. The •facts of this case show that there might be serious prejudice to the issue of the first marriage, by the doctrine contended lor by our opponents. The minor, Paul, is not represented in the rule, and was not a party to the. original suit; there was, therefore, no defendant, and no contestation litis; the judgment' was consequently null, and could not authorise the sale of' the property.
    II. The plaintiffs also were minors, emancipated by marriage, and were not" specially, authorised by the judge, on the advice of a family meeting, to sue for the partition of their property, as required by law in-such cases. G. C. 1236, 1235, 376, 377. Breaux v. Carmouche, 9 Rob. 36.
    III. No public inventory of the property to be divided, such as is required for the basis of a judicial-partition, was made during the pendency of the suit, nor' within one year preceding it. C. C. 1-246-9. This inventory might have been made after the decree of partition, and at any time before the sale. Millaudonv. Percy, 5 Mart. N. S. 554. Lalaiine’s Heirs v. Moreau, 13 La. 433. This was not one of those errors of- proceeding,- which are covered by the' judgment of the court. 13- La. 433. But w-e are told that the appraisementwhich was made, was a substantial compliance with the law; and that art. 1247 is applicable'only to partitions in kind, and not to those to be effected by a sale.An appraisement madcw-ithout the'presence of the parties interested, or that of a notary or witness, evidenced-by no public act — '•by nothing but a slip.iof pap.er filed in court, containing aproces-verbal under private signature, purporting-to be signed by the appraisers alone, is far from being a substantial compliance ■with the law prescribing the form of public inventories. Arts. 1247, 1093-9, 1-101-3. Art. 1247 makes no distinction-between partitions in kind, and those’ which are made by a sale of the property.
    IV. It is urged by the plaintiffs in the rule, that the purchaser cannot refusetb take the property and pay the price, unless he be disturbed in his possession. In support of which--position,■ they cite the following authorities : Arts. 710; 7-11, C.-P.,-and the cases of Collins v. Daly, 4 Rob. 113. Abat v. Pallet, 3-Mart. N. S. 220. Foster v. Murphy, 5 Ib. N. S. 82. Freret v. Meux, 9 Rob. 416. Stille v. Bronson, 5 Mart. N. S. 47.
    AU-of these authorities except Freret v. Meux, are inapplicable to the present' case. Arts.-710, 711, C. P. apply to -sheriffs’- sales-made under writs of fi. fa., in cases where the property is subject to legal or judicial mortgages. Theses mortgages do-not prevent the sale under ti fi. fa., nor excuse the purchaser for not complying with the' conditions of the sale, saving the cases excepted in art. 7-1-0; All of the cases above cited, except that of Freret v. Meux, relate top sheriffs’ sales made- under writs of fi. fa. The general expression of judicial sales, which is applied as weil to sales in execution of writs-of ft. fa., as'lo those ordered by a court in matters of succession or partition, could alone give rise to the error of confounding this case with those above cited. Our Code, art. 2594, says that: “ Sales which are made by authority of law, are of two kinds: 1st. Those which take place when the property of a debtor has been seized by order of a court,-to be sold for the purpose of paying the.creditors. 2d. Those which are ordered in matters of succession or partition.”
    Sales under execution do not give rise to the redhibitory action, but may be set aside, in cases of fraud, and declared null in cases of nullity. C. C. 2597, 2515. They transfer only the rights of the debtor, such as they are. C. C. 2598. On the contrary, “ all the warranties to which private sales are subject, exist against the heir in judicial sales of the property of successions. Art. 2602. When the court, in Freret v. Meux, say that the vendee, “ may .refuse ■to pass the sale until a good title is tendered to him, and musthe relieved if his vendor is unable to give one; it is otherwise with regard to judicial sales,” «¡ting Code of Practice, art. 710,3 Martin N. S. 221, it is evident.from the authorities cited by the court, that the -first class of judicial sales specified under •art. 2594, was alone intended.
    The heirs of Molinari wish to sell their property to effect a partition. If of .age, they might agree-to sell it by an auctioneer, or an attorney in fact. We ■might in that case, refuse to accept a sale of real estate, until the auctioneer or attorney in fact was shown to be authorised in writing, by all the parties in interest to sell; until a good title be made out to us; until, in fine, such title be tendered to us in writing. C. C. 2584, 2255, Freret v. Meux, above cited. ■Not being of age, they can sell only through legal representatives and with legal ■formalities. What should forbid us in this case, to examine the qualifications of those soi-ifearci legal representatives, and the reality of the alleged authorisation ? Ours is not the case of a purchaser who has accepted a deed and taken possession of the property, and is trying-to see how long he can enjoy it without paying the price ; so that art. 2535 does not apply to us. Pontcharlrain Ii. R. ■Company v. Dwell, 6 La. 485. Freret v. Meux, above cited. We have not taken possession of the property, because we believed that the judgment and sale conveyed to us no title. The tender of title in the rule, by the minor plaintiffs in the rule, can add nothing to the previous formalities. If the judgment and public sale have divested the minors Molinari of their rights, and transferred them to us, we are willing and ready to pay the price.
    
      Collens, for the plaintiffs, and Pecquet, for the tutrix, in reply.
    
      Mrs. Fernandez never claimed the dative tutorship providedfor by art. 272. She preferred to surrender the tutorship; and, at her own request, ,a dative tutor was appointed in her place; but after the death of her second husband, her incapacity to hold the tutorship, by natural right, having ceased, she prayed for and obtained the natural tutorship provided for by art. 268. Art 272 is intended as a protection against the second husband. The mother cannot be suspected of any such bias,all the children are her’s, and she must feel for them equal solicitude. Luring the second marriage, she might yield a great deal to the ■influence of her husband; but after his death she occupies in the eye of the law the same position with regard to all her children. Theie being, after the death of the second husband, no existing legal cause of exclusion, article •288 could no longer apply. If, after the death of the second husband, Mrs. Fernandez had a right to the natural tutorship, no family meeting was necessary, though indeed one was held, and it advised her appointment. She was “of ■right” entitled to the tutorship, it being then, vacant. C. -C. 265, 268. No cause of exclusion could be urged against her ; no other person could claim a preference. The circumstance requiring the call for a family meeting, provided for by arts. 272 of the C. C., and C. P. 951, could not apply to the widow; for. at the time, there was no marriage existing or intended. She was not therefore required to give security. C. G. 269, 330.
    The cases of Mossy, 3 Rob. 390, and Robinsonv. Weeks, 5 Mart. N. S. 379, do not apply. In those cases, the second husband was living.
    JBoileux, in his “ Commentnire sur le Code Civil,” under art. 395, C. N., says: “ A la mort du deuxieme mari, la mére qui n’a pas été maintenu, recouvre-t-elle la tutelle? Nous le pensons : cessante causa, cessat effectus.”
    
    Letters of tutorship are mere certificates of the fact of appointment or confirmation ; and their existence or non-existence cannot disturb the legal character and validity of the appointment by the judge. It is .the confirmation duly made, followed by the oath required by law, which invests the natural tutor or tutrix with his or her official charge and responsibility. The assumption that, jf j\qrs, Fernandez gives no other security than the tacit mortgage, Paul Molinari’s mortgage must be necessarily inferior to that of the minors Fernandez, .as being of subsequent date, is an error, for the confirmation” as natural tutrix must date, in relation to the children of both marriages, back to the time when the tutorship was actually assumed, or was vested by law, to wit, to the date of the death,of the second husband. C. C. 268. But if it were not so, in all cases of this kind the minors of the first bed, for all acts of administration previous to the mother’s ro-appointment, are always fully secured, either upon tho estate of the second husband {C. C. 272), or by the bond of a dative tutor (C. C. 330), and in this case, Paul Molinari has both guarantees.
    The appellant relies on articles 1235,1236,376, 377 of the Civil Code, to sustain his second position. These articles do not apply to the caso, but are intended to govern minors emancipated otherwise than by marriage^ The minor wife had a right to sue for a partition, and no curator was required to assist her. Her husband was the proper person to authorise and assist her. A suit for a partition cannot be viewed as a voluntary alienation, to which the prohibitions of arts. 375, 377 apply, nor does art. 1236 apply as to the mode of authorisation, to the minor wife emancipated by marriage. Her curator is her husband. C. ■Code, 378,123 et seq., and 1779. Code P. 106, 107. Art. 1239 of the Civil Code is conclusive in our favor; jt admits of no distinction between the minor ■wife, and the wife of age. The right to sue, in a case like this, is clearly es„ lablished in tho case of Hooka v. Hooke, 6 La. 472. Art. 1240 declares that ■the husband can, with the concurrence of his wife, sue for the partition of im* movable property. See also arts. 368 of the Civil Code ; and art. .999 of the C. P. and amendment thereto. Bullard & Curry, p. 154, sec. 14. The word f‘ even” in this amendment makes the rule general. As to the alienation, if it can be so called, by means of the partition. — it is clear that it can he made by minors. Civil Code, 1235, 1236, 1237, 1238, 1239 and 1240. C. P. 1023. In 14 La. p. 22, it is decided that a licitation to effect a partition is not a sale as between the heirs, and does not change the .character of the thing to be dL vided.
    This suit is instituted by two persons: 1st, a minor husband; and '2d, a minor wife, assisted by her husband, who is of age. Admitting,the defendant in the rule to be correct, in drawing a distinction between these two, as to their right of demanding a partition, still, it being adinitted that the minor husband had that right, under art. 368 of the Civil Code, the judgment ordering the partition is valid, for it could have been rendered upon the petition of tho minor husband alone.
    I he authorisation of the judge, if required at all, in relation to minors emancipated by marriage, is necessarily inyolved in the judgment rendered, decree-, ing the partition.
    It is contended that there should have been an inventory preceding the sale ■or partition. Arts. 1246, 1247 and 1248, are quoted. These articles .can apply only to cases where the partition is to be made in kind. The use to be made of the inventory is shown by articles 1278, et seq. Its object is also to enable the notary to make the collations between the heirs, and this is expressly excluded from such a case as tho one before the court, by art. 1304 of the Civil ■Code. This is a licitation; and the rules applicable to jt are entirely different. In Imitations the judge “orders a sale at public auction,” in which case an inventory is perfectly useless. Cessante rations legis, cessat ipsa lex. Of what use could the inventory be ? Why take an inventory of a single town lot, fully described in the petition and judgment, and ordered to be sold for .cash, when the proceeds aro to be distributed equally among the heirs, without collation 1 ltwould have been a work of entire supererogation. Even an appraisement, in cases pf licitation, pan have no effect. Jacobs v. Lewis, 8 La, 179. Foidev, Weekes, 7 La. 312. Civil C.odo 339, 1863.
    Even did the technical informalities spoken of exist, the minor is bound, and pould not disturb tho purchaser. Michel v. Michel, 11 La. 154. Lallane v, Moreau, 13 La. 433. Tolmie v. Thompson, 2 Pet. 106. The purchaser can-pot refuse to take the property and pay the price. The sale was a judicial one. In judicial sales the purchaser cannot withold the price, unless he is disturbed in his possession. Abat v. Pallet, 3 Mart. N. S. 220. iStille v, Prou-nson, 5 Ib. N. S. 47. Foster v. Murphy, 5 Ib. N. S. 82. Collins v. Daly, 4 Rob. 113. Freret v. Meux, 9 Rob. 4Í6. See also C. P. 710 and 711. It is true that in judicial sales, made to effect partitions, the rules of warranty are different from those of sales made under Ji. ja.; but all judicial sales possess in common this feature, that the adjudication is a complete title to the purchaser. Civil Code, arts. 2594, 2598, 2601. See also C. C. 2535 fit s,eq.
    
   The judgment of the court was pronounced by

Rost, J.

The defendant has appealed from a judgment condemning him to comply with the terms of an adjudication of real estate, and prays for its reversal, on the following grounds •:

1st. The property was sold under a decree rendered in an action of partition, which had been instituted by two of the heirs against their mother, as tutrix of the other heir. The plaintiffs were both minors, and, although married, it is alleged they could not sue for a partition of real estate, without the authorisation of the judge, given on the advice .of a family meeting.

2d. The mother of the defendant had lost the natural tutorship, by marrying without having been legally authorised to retain it, and another tutor had been .appointed. This tutor, and the second husband, both died ; a family meeting advised that the mother should be re-appointed tutrix,and she was so appointed, bu.t did not give bond. The appellant contends that she could pot act until that formality was complied with, and that she did not represent the minor in this suit.

3d. It is further alleged that the appraisement made before the safe, is not .such as tho law requires in cases of partition.

Art, 368 of the Civil Code is an innovation on the former laws on the same subject. It athorises the husband under age to appear in court in all cases, and was .intended as an exception to the dispositions of arts. 1235, 1236, 376, 377 of the Civil Code, relied on by the defendant. Those dispositions apply now to cases of ordinary emancipation only. The amendment to ait. 999 of the Code of Practice, found in the 22d sec. of the act of 1828, amending various articles .of the Codes, gives .a similar power to tho wife under age, proyid.ed she be .authorised by her husband. Session Acts, p. 154.

The rule that all persons except the father and mother shall be bound to give bond before they can a.ct as tutors, is general in jts terms, and there is no warrant of Jaw for making a distinction in cases like the present. Under art. 950 of the Code of Practice, the judge was .authorised to appoint the defendant tutrix, without the advice of a family meeting; the circumstance that she submitted her application to them, and was decreed worthy of the trust, cannot impose additional burthens upon her-

The appraisement made before tho sale was in the usual mode in cases of seizures under execution, and satisfies the requisitions of tho law. When a li,citation takes pla.ee, there is no notary designated before whom the inventory .and appraisement can be made. Those formalitios only take place in partitions jn kind.

There is no error in the judgment appealed from.

Judgment affirmed.  