Scott's v. Gorton's , 14 La. 111 ( 1839 )

Martin, J.,

delivered the opinion of the court.

In this case the defendant, executor of Gorton, is appellant from a judgment which condemns him to pay a certain sum, as the difference between two adjudications of property, which he bid off at the first sale of the succession of the late Judge Scott.

The facts of the case show that the defendant’s testator became the last and highest bidder of two slaves, at the probate sale of said succession, and refused to comply with the terms thereof. The slaves were put up a second time, and adjudicated to the husband and agent of the executrix, for a less sum than the price for which they were bid off at the first adjudication, and the present suit is instituted to recover the difference, under the 2589th article of the Louisiana Code.

A recovery has been resisted on several grounds, the principal one of which is that the re-sale produced no mutation of property, the purchaser being the agent of the seller. In all contracts there must be at least two.parties, the'aggregatio mentivm of two natural persons. A. B. executor of C. D. cannot contract with A. B-, because A. B. executor, and A. B., are both one natural person. So, the agent of the executrix, for the sale of the property of the estate, could not contract with himself, and purchase part of that estate; because the agent of the executrix, the seller, and the purchaser, are both one and the same natural person. Beall vs. McKernion, 6 Louisiana Reports, 407.

Secondly, there was no mutation of property, because the Jaw inhibits all contracts between husbhud and wife. Louisiana Code, article 1784. The present case offers no exception to this principle. If by the sale there was any mutation of property, it passed from the wife to the husband and wife, r r J 7 r The community of acquests and gains is always presumed, and when it exists, the property acquired by either husband or wife, is common to both. If, therefore, the purchaser acquired property to the slaves, they became common to him and the seller. The wife having the administration of the property of the succession, was disabled by law from purchasing any part of it. Article 1784:

We have not inquired whether the law be different in a case in which no community of property exists, because this is not suggested in the present case, and the community exists whenever it is not excluded. For these reasons we conclude that the re-sale wrought-no mutation of property.

This conclusion renders it unnecessary to examine any of the other questions raised in the defence.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and that ours be for defendant, with costs in both courts.