Chalon v. Walker

By the court: (Preston, J., dissenting. Slidell, J., absent.) Rost, J. The plaintiff claims from the defendant the price of certain lands purchased by him at public auction, with the interest that has accrued upon it. The answer of the defendant is not so explicit as might be desired; but we understand the prayer to be for a resolution of the sale, on the ground of informalities in the action of partition under which it was made. There was judgment against him for the amount claimed and interest, and he has appealed. In the action of partition, Elizabeth and Palmyre Alpuente, two of the parties, were married women. The answer states, that they were duly authorized and assisted by their husbands. But the husbands did not make themselves parties to the proceeding, and no authorization is shown. The heirs of Rabassa were parties in interest, and should have been made parties to the suit. His executor alone was cited. No experts were appointed to determine whether the property was susceptible of division in kind. These are informalities of which the parties having an interest could alone take advantage, and which it is in their power to waive, by ratifying the sale; and, as they have offered to .do so, within any reasonable time the court may allow, we consider this a proper-eas'e'for'th.e exercise of the discretion vested in us by article 2042 of the Code. It is therefore ordered and decreed, that in conformity With article 2042 of the Civil Code, Elizabeth Alpuente, the wife oí Alexander Joseph Atocha, by him duly authorized and assisted; and Palmyre Alpuente, the wife of Henry Boyle, duly assisted and authorized; Julie Pamela Mary,the wife of Antoine Joseph Guirot, by him duly assisted and authorized; and the heirs of the late Joseph Rabassa, have a delay of sixty days, to ratify and confirm the adjudication made to the [478] defendant, Augustus W. Walker, of the property described in the petition: and, whereas the defendant alleges that there are various irregularities in the proceedings for a partition, under which the adjudication to the defendant was made, and the plaintiffs have declared their willingness to ratify generally the said proceedings and adjudication, whereby, it becomes unnecessary to examine said irregularities, it is further ordered, that the plaintiffs and their assigns do ratify said proceedings for a partition, and said adjudication, within said delay of sixty days; that, on the plaintiffs executing before a notary public, and filing in the Fifth District Court, within said delay, a copy of the act of ratification, as hereabove directed, they recover from the defendant, the sum of two thousand six hundred and sixty-four dollars, with five per cent interest on the sum of $666, from the 5th of December, 1250 ; and with interest at the rate of eight per cent on the further sum of $666, from the 11th March, 1850; on the further sum of $666, from the 11th of September, 1850; and on the further sum of $666, from the 11th March, .1851 — until final payment, with costs in the court below; the costs of the appeal to be borne by the plaintiff. And it is further ordered, that if the plaintiffs should fail to execute and file, within the aforesaid delay, said act of ratification, as within directed, the aforesaid adjudication, made to the defendant on the 8th March, 1849, be annulled and rescinded, and that in that case the plaintiffs pay the costs in both courts. It is further ordered, that this case be remanded to the district court, for the purpose of having the foregoing decree carried into effect. Eustis, C. J., concurred with Rost, J.