
    Fernandez v. Bein.
    Wliove the highest anil last hid, made at a judicial sale, is insufficient to discharge a mortgage existing on tho property entitled to a preference over the claim of tho judgment creditor, there can he no adjudication. C. P. 684.
    One to whom a slave, advertised for sale as in a state of unconditional slavery, is adjudicated nt a judicial sale, cannot he compelled to comply with his bid, if it turn out that' the slave is a statn-Ubei\
    
    APPEALS from the Parish Court of New Orleans, Maurian, J.
    
      Deslix for the appellant. Denis and Pilot, contri.
   Tho judgment of tho court was pronounced by

Eusíis, C. J.

On tho 18th of October, 1842, Eulalie Cheval, a free person of color, sold to tho defendant a certain negro slave, named Sarah, then about nineteen years of age, for the sum of $420, on a credit of six months.

For this sum she gave a note, endorsed by her husband, bearing interest, of which the plaintiff is the holder. To secure the payment of this note and interest, the defendant executed a mortgage on the slave Sarah, which mortgage was duly assigned to the plaintiff.

The plaintiff prayed for an order of seizure and sale of the slave, to satisfy the debt, interest and costs.

The note was identified by the notary with the mortgage; and the remedy which the plaintiff seeks is dependent on the act of sale and mortgage before recited.

The sheriff’s return states that tho slave was adjudicated to J. J. Jandot, for $600; but that nothing came to his hands from the sale, by reason of Jandot’s not complying with the conditions of it.

A rule was taken on the sheriff, at the instance of the plaintiff, to show cause why he should not pay the plaintiff the amount due on his note. Tho answer of tho sheriff charges that Jandot has refused to pay the price, on account of certain mortgages recited in the recorder’s certificate ; and because tho slave Sarah is only a slave for a term of years, or a statu-liber, and not a slave for life ; and that she was advertised, unconditionally as a slave.

Jandot, being called in as a party by the sheriff, makes substantially the same pleas for the non-payment of the price of the slave.

I. As to the mortgage. The recorder certifies that tho slave is subject to a mortgago of $1000, by act passed before Ducatel, notary, dated 6th December, 1841, and recorded on tho 1st of February, 1842, granted by Eulalie Cheval to Edward Jones. This mortgage is recited in the act before mentioned by which the slave Sarah was sold to the defendant. In this act, Theodule Drou-et, of this city, intervenes and declares that, “being the last bearer of the above two mentioned notes of $500 each, forming the amount of $1000, mortgaged in favor of said Edward Jones, he doth by these presents, give a full discharge and entire release of the mortgage mentioned in the certificate hereto annexed.”

We have not before us the act of Dec. 6th,. 1841, in which the mortgage is stipulated, and we do not see ány sufficient connection between this mortgage of 351000 and the declaration of Drouet, to authorise us to determine that it is a lawful release of the mortgage; and we presume the recorder of mortgages came to the same conclusion. At all events, the mortgage is not proved to have been released, and we must consider it as still existing.

The bid of Jandot was for 35600. If the mortgage for 351000 existed, it is obvious that, under the 684th article of the Code of Practice, there was no sale.

II. But if the mortgage did not exist, the plaintiffs situation is not benefitted by it. He can have no rights over the slave mortgaged, other than his assignor the vender, had. In the sale for tire price of which this note is given, there is this condition:

“ The present sale is further made under the express condition, without which it should not take place, that, in case during the space of ten year's from this day, the father of said slave Sarah, Francis Lockwood, should be willing to purchase his said child, Sarah, or, in case of her father’s death, said Sarah should be willing to use the same privilege of purchasing herself, said Mrs. J. D. Bein, duly authorized by her husband, promises and obligates herself, her heirs and assigns, or any other possessors after her, of said slave, to desist of the possession of said Sarah, in favor of her father, said Francis Lockwood, or of herself, his said daughter Sarah, provided he or her should reimburse to said Mrs. Bein, her heirs or assigns, or any lawful possessors of said slave, the above specified sum of 35420, the amount of the present sale.”

By this clause, so far as relates to the vendor and vendee, this slave obtained the privilege of becoming free by purchasing herself in a certain event. If, during the ten year's subsequent to the sale, her father should die, and she pay the sum of $420 to the purchaser, or her assigns, so far as these parties were concerned, the slave, Sarah, would be entitled to her freedom. Civil Code, arts. 37,193, 194, 195, 196.

She became a statu-liber — her condition was thereby changed, and the plaintiff is estopped by his own act from treating her as a slave for life. She was advertised for sale as a, slave unconditionally, and she was, by the plaintiff’s own contract, that is by the contract of which he claims the benefit by assignment, in enforcing the payment of the price by a judicial sale, created a slave for years, and, as such, she ought to have been advertised.

It must be understood, that our opinion of the change of condition of this slave, is confined exclusively to the party before us as plaintiff, and the obligations of the purchaser at the sheriff’s sale.

III. If the mortgage existed there was no sale ; and, if it did not exist, there was no legal advertisement. Either hypothesis is fatal to the plaintiff's pretensions. Judgment affirmed-  