HUDSON, SYNDIC, &c. vs. BODIN, 11 La. 348

Bullard, J., delivered the opinion of the court. It appears in this case, that a tract of land belonging to C. Jacobs, upon which the plaintiffs and others claimed to have mortgages, which originated while the land belonged to Dugat, was sold by the parish judge by consent of the owners and the parties interested, in pursuance of an order of court, in the cases then pending. The defendant, a stranger to these controversies, became the purchaser, and gave his notes for the price, which were disposed of according to that order.

The agreement and order of court, required, that the land should be sold on the first of January, on a credit of one, two and three years ; but the auctioneer did not sell until the 1st of March following, but the price was made payable at the same period designated in the agreement.

The present suit is brought by some of the parties to that agreement, not including one of the creditors who had been paid out of the price paid by the defendant, and not including Jacobs, the former owner, against the purchaser, for the purpose of causing the sale and adjudication of the land to be rescinded and annulled, on the ground, that the parish judge did not sell in conformity to the order of court, and the agreement of parties; and that he sold for an inadequate price.

They further pray that the defendant may be condemned to account for all the improvements removed by him from the place, and that the land may be seized and sold to satisfy their demand.

Where mortgage creditors of a tract of land, sold by the mortgagor, enter into a consent rule, together with the third possessor, that it he sold on a particular day and on certain conditions ; the proceeds to be divided according to the rights of the parties 5. and the auctioneer does not sell it until two months after the time specified, hut conformable to the conditions in other respects, the purchaser will hold as against these creditors; they cannot have the sale rescinded on the ground that it was not made agreeable to the consent rule.

In an action for the rescission of a sale, by mortgage creditors, a judgment for defendant and not one of non-suit, sliQuId be given in case of failure to support the action. The purchase still may be good, and yet the land not released from the previous mortgages. The contract sought to be rescinded, was essentially between Jacobs, the owner, and Bodin, the purchaser, through the agency of an auctioneer.

The intention of the creditors who assented to the sale, was, apparently, that the notes to be given by the purchaser should represent the land, and that the court should proceed to distribute the price according to the rights of the parties. We, therefore, fully concur with the opinion of the district judge, that the rescission of the sale cannot be pronounced between the present parties.

The vendor does not demand that a contract to which his assent is essential should be annulled, and yet the effect of rescinding the contract would be to re-invest his title ; and one of the creditors who appears to have been paid out of the proceeds of the sale is not made a party. It is clear, therefore, the court did not err in dismissing the petition. But the appellants complain that the judgment should have been one of non-suit, and that the court erroneously quieted the defendant in his title against their claims. The purchaser’s title may be good and yet the land not released from previous incumbrances.

That is a question we are not called on to decide in this case, and perhaps the court below would have reserved it if it had been asked. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs; reserving, however, to the parties their rights, if any they have, as hypothecary creditors.