HAWKINS vs. BROWN ET ALS., 7 La. 417

Martín J., delivered the opinion of the court. The defendants being sued for the price of two slaves, purchased by Brown, at the sale of Thomas^ Grimball’s estate, by order of the judge of probates, resisted the claim, on account of alleged redhibitory defects and vices in the slaves thus purchased. Judgment was rendered against them for the amount claimed, and they appealed. Redhibitory defects or vices ■which are made known by the vendor to the vendee, at or before the sale, cannot be urged in avoidance, or in any manner set up against the sale.

Parole evidence is admissible to prove the declarations of a vendor in relation totheredhibitory vices of slaves at or before the sale. It i stlie duty of auctioneers to receive the conditions of a sale in writing from the vendor, and to read and proclaim them in a loud and audible voice to the bystanders, and invite bids in conformity therewith. The mere legal agent appointed to sell property by authority of law, has no powers but those conferred by law.

The counsel for the defendants and appellants, has drawn the attention of the court, to a bill of exceptions taken to the admission of evidence, of the declarations of a person, whom the parish judge called to his aid at the sale, as a crier; and of conversations of several persons, with one of the defendants, while the sale was actually going on. The counsel for the plaintiff contends, that the declarations of the crier were properly admitted, as they were made in presence of the parish judge, and by the directions of a person by the name of Grimball, whom he alleges, was one of the heirs. The Louisiana Code,

article 2498 provides, that, the vendee cannot urge redhibitory defects, which were made known to him by the vendor, at or before the time of sale; and authorises parole evidence of these declarations. The plaintiff further contends, that the parish judge, acting as auctioneer, was the agent of the vendor, and as such, his declarations are those of the latter; that an auctioneer may employ a crier, whose statements proclaimed and declared to the bystanders or the company, are considered as proclaimed by the auctioneer himself, and consequently by the vendor, whose agent the auctioneer is, in such cases. The Louisiana Code,

article 2495, requires the auctioneer, after having received the conditions of the sale in writing, from the person offering the property for sale, to r.ead and proclaim them in a loud and audible voice to the company, and then invite bids in conformity to those conditions. Auctioneers, especially those living out of New-Orleans, and in the several parishes where there is no auctioneer but the parish judge, are not, strictly speaking, the chosen, though they may be the legal agents of the vendor; and we doubt whether they be more than the legal agents, in places in which there are two or more auctioneers.

The mere legal agent, has no authority, but that which the law confers. ' The written conditions, which the Louisiana Code seems to require, cannot certainly be changed, without the posterior act of the. vendor, and he who contends, that such

an act has taken place, must show it. The administrator of an estate is the legal vendor of the property at probate sale, whose declarations are to govern in regard to its conditions and terms, and the legal ing therefrom, property legally mhdstratorhinds the heirs in warra'rhe ersaersnlt°abprohaté sale with a purchaser, in which he is apprised of ii^the^property off^wiii* not^be admitted to ex-wOTranty^ciaim6o’ to^estahiish the fact that the compiained^of edbydie vendor to the purchaser.

The crier’s dederations at a probate sale unauthorisedbythe .vendor, are inadmissible in evidence to show the buyer was thereby apprised of the redhihiproperty3 mSoíd ¡^016 lie tldfor In the present case, it appears, that the parish judge called on a person then present, to aid him in crying the sale. It is also shown, that a person by the name of Grimball, who was present at the same time, directed that the crier might proclaim and declare to the company, the redhibitory defects in the slaves, which are now complained of, and which he did, in the presence of the parish judge.

The sale was provoked by Hawkins, the administrator of Grimb all’s estate, of which the slaves in question constituted a part. The auctioneer or parish judge, was bound to read and proclaim the written conditions of sale, given to him by Hawkins, the administrator. It is to them we are to look, in or(jer to ascertain whether the legal warranty, on which the defendants rely, and claim the benefit, was excluded or not. The administrator was the vendor.

His sale, it is true, bound heirs of' Grimball to the legal warranty; but this court is not ready to say, that if any of the heirs had directed the declarations, concerning the redhibitory vices to be made by fbe auctioneer or crier, the purchaser would not have been bound thereby.

But we are compelled to say, that no decla- , •> r ™ ration made by a stranger, can have the same effect, The conversations of bystanders, with either of the defendants> were in tbe opinion of the court, improperly admitted to exclude the legal warranty relied on, and the benefit of which is claimed by the defendants, unless they tended to establish fact, that the redhibitory vices complained of, had been declared by the vendor to the defendants, In all cases of a trial by jury, the party claiming it, is entitied to a verdict, uninfluenced by illegal evidence.

According j;0 this principle, the case must be remanded for another trial.

This renders it unnecessary for the court, in the present state 0f the case, to examine any of the other questions or points of .... law, arisingm the cause. jt js therefore, ordered, adjudged and decreed, that the ’ , ’ . ’ J , ... ... judgment of tlie .District Court be annulled, avoided and reversed; the verdict set aside, with directions to the court, not to allow parole evidence of the crier’s declarations, unauthorised by the vendor, or of the conversations of bystanders, with the defendants, unless they tend to show, that the redhibitory defects and vices in the slaves, were declared by the vendor to the vendee, before, or at the time of the sale; the costs of the appeal to be borne by the plaintiff and appellee.