Cavelier v. Germain

Martin, J., delivered the opinion of the court. The defendant on a rule to show cause why he should not be decreed to comply with the conditions on which a house and lot, the property of the minor wards of the plaintiff had been adjudicated to him, urged that the plaintiff did not give the bond required by law, from her as tutrix, till two days after the adjudication. She showed that after the adjudication, she under an order of court, submitted it to the consideration of a family meeting, whether it was for the interests of the minors to have a new adjudication made, or the former ratified, and their opinion, which was for the latter alternative, was concurred in by the widow tutrix. The rule was made .absolute; the court of probates expressing its opinion that the property had been sc Id under an order of court, granted on the advice of a family meeting, and a subsequent family meeting had ratified the adjudication, made two days before the tutrix gave bond. The defendant appealed. The plaintiff and appellee’s counsel has contended that the formalities prescribed by the Civil Code, 1787 and 1888, having been complied with in due time, the adjudication became thereby perfect. The article 1787 does not appear to us to have any bearing on the present case. The article 1788 authorises a person contracting with an incapacitated person to have, on disproving his error, the contract affirmed or annulled by the person having the care [218] of the affairs of the incapacitated individual, or by a family meeting. of a party or Si withthwhomrShe givesthjfcontract Bothpartfes*must tiler.0™ or-ne" Theaactionoor’s Shldontheadproperty1 of*1a minor, was tlie acceptance and if the person ío? givPenCisTcS lc^afacceptanco of the bid. ratification''of'a sale made under such circumstances by a famiapplication of the ESieroit idfbutsuch'arotifvau°whenfohof tie minor.6 This is the converse case, for the application to confirm is made in behalf of the incapacitated person. We have not been favored with, an argument on the part of the appellant. It appears to be admitted by the appellee, that the property of the minors did not pass by the adjudication to the last holder, in other words that there was no sale; and we are called upon to say whether a new contract of sale, binding on the appellant, may result from posterior proceedings, to which he gave no assent and to which he was not a party. R *s the assent of a party, or that of the person he contracts with, which gives the contract its binding force, Both parties must be bound or neither. The sale of a minor’s prop erty must be made by his tutor, by the ministry of an auctioneer. It is the tutor who sells, and a tutor cannot sell until he has given surety. The bid of the appellant was offered to and accepted by an auctioner, who lent his ministry to the tutor. His acceptance of the bid and judication was the acceptance and sale of the tutor, and if the person who was acting in that capacity was not qualified to act, according to law, there was no legal acceptance of the bid, no legal adjudication of the property. On the . n and'application oi the appellant, it the family meeting had ratified the sale, it might, under the Civil Code, 1788, have been legal because the appellant’s application accepted on behalf of the minor, by the family meeting, would have proved a perfect contract; but as the application could not have formed a contract, without its acceptance by the family it . . meeting;, so the determination ox the family meeting cannot 07 ° ° constitute a contract without the intervention of the appellant. A ratification binds the party who ratifies, but not the * other party to the contract, who not being bound by an imperfect contract, cannot become so, nolens volens. For it must not be in the power of a party to an imperfect contract [219] to avail himself of and repudiate it at any time, as he may be prompted by his interest or caprice. It is, therefore, ordered, adjudged and decreed, that the judgment of the court of probates be annulled, avoided and reversed, and the rule obtained against the appellant dis-charged, the appellee paying costs in both courts.