¶1Dissenting Opinion.
¶2Robert J. Ker, deceased, acquired the ownership of •several lots of ground in the. city of New Orleans, which are situated in the. square bounded by Esplanade, Claiborne, Bayou Road and Robertson streets, a, portion of which forms the subject of this controversy.
¶3*21Of these, three lots have their front on Espl amule street, with side line on one side, on Claiborne street, constituting this property the corner of Esplanade and Claiborne streets.
¶4Four others have their front on Claiborne street, with one side line passing immediately in the rear of those last described.
¶5The remainder consists of a narrow strip of ground of very nearly the shape of a parallelogram, which is situated in the rear of both of the two pieces of ground above described.
¶6For convenience of reference, those tliree pieces of property may be designated by the letters A, B and C — -A representing the property sit* uated at the corner of Esplanade and Claiborne, B the property which fronts on Claiborne street, and C the property which is situated in the rear. See plan annexed.
¶7All of these properties were purchased by Ker in the years 1843, 1844 and 1845.
¶8On the 8th of June, 1863, he consented a mortgage for $12,000, represented by a series of promissory notes, payable to his own order and indorsed, though Chiapella is mentioned in the act as the mortgagee, upon the property mentioned in letters A and C; and on the 20th of June, 1872, he executed another mortgage, likewise represented by several notes, Charles Lafitte being named as the mortgagee upon the property mentioned in letter B.
¶9In 1878 Mrs. Emelie Everslied, the mother of the defendants, purchased at execution sale, under a judgment which she had obtained against Ker, on several of the notes which were secured by the Cliiapella mortgage, and she received a sheriff’s title thereto.
¶10No proceedings have been taken to purchase the Lafitte mortgage.
¶11In the course of the administration of the succession of R. J. Ker, in 1886, the property mentioned in letters B and C were adjudicated a probate, sale, and, upon inspection of the titles, it was ascertained to be a fact that the property mentioned in letter C was included in and covered by the Chiapella mortgage and'the Everslied title j and the purchaser declined to accept the title tendered him by the Ker succession. An investigation led the administrator to believe that the Chiapella mortgage and the Everslied .title had been erroneously extended to the property mentioned in C, contrary to the intentions of the contracting parties; and, therefore, this suit was brought to have this error judicially declared, and the titles to be so corrected as to conform to the true intentions of Ker and Mrs. Everslied.
¶12The principal averment of the administrator’s petition is “ that, although such appears to be. a fact, yet, in reality, it was the intention of *22Ker to grant and of A. Chiapella to accept by the said act * a mortgage only upon Hie corner of Esplanade and Claiborne streets, as it stood, and enclosed within well-established dividing fences, forming a distinct and separate property from the rest … hut through a clerical error and inadvertence, and contrary to the intentions of the contracting parties, the notary, in drawing up the said act of mortgage, erroneously extended it over the whole” of the property mentioned in A and C, when it should have been restricted and confined to that mentioned in letter A. '
¶13I-le likewise represents that whatever may appear uj>on the face of the Lafitte mortgage act, “it was, in reality, the .intention of said Ker to grant the letters and of Lafitte. to accept a mortgage upon the whole” of the property mentioned in the letters B and C : and that it should not have, been restricted and confined to that mentioned in letter B.
¶14He further represents that when, on the 7th of September, 1878, Mrs. Eversbed became the adjudicates at sheriff’s sale of the property as erroneously described and as consisting of the whole of A and C, she' really and actually took possession of “that property which, iri the intendment of the parties,- had been really mortgaged and sold, i. c., the property at the corner of Esplanade and Claiborne streets, comprised in letter A, and never set up any pretension to any more; and that Ker remained in the undisputed possession as owner of all the other properties mentioned and comprised in the letters B and 0, and of which the administrator is now in possession.
¶15Substantially, the defendant’s answer is a general denial, coupled with aii averment of the truth and correct,ness of the recitals contained in the title of the sheriff to their mother, and in the Chiapella mortgage. They further aver that the descriptions which are contained in said acts are identical with those contained in the conveyances of Ker’s vendors, and of their authors. They insist that plaintiff’s demands are stale, because the acts in which error is assigned are twenty years old.
¶16On these issues the facts developed on the trial are as follows, viz:
¶17In the intertm between the date of Ker’s several purchases and 3850, he divided the several properties above enumerated into five distinct and separate lots, placed commodious and valuable residences upon each, ami separated one, from another by substantial fences.
¶18On that part of the property situated at the corner of Claiborne and Esplanade streets, and within the limits mentioned in letter A, he established large and commodious improvements in which he resided until the date of the sheriff’s sale to Mrs. Eversbed, on the 7th of September, 1878. The remainder of the property mentioned in letters B and C were *23divided into/ow distinct premises, fronting on Claiborne street. In this manner the property in letter C was subdivided at right angles with that on letter A.. Upon each one of these four premises tenements were erected, suited to the wants of occupants, and same have been occupied continuously since as separate residences.
¶19When Mrs. Evershed purchased, such was the situation of these several properties; and, under her sheriff’s title she went into possession only of the Ker homestead, as at present enclosed, and as above described, and no wore. Ker became her tenant, and continued to occupy the property, paying her. rent. After her death he paid rent to her executor, and afterward to the defendants, as her simple heirs. Subsequently he removed to one of the four premises fronting on, Claiborne street, and mentioned in letter B, where he continued to reside until his death; and his family have continued to reside there since.
¶20Neither Mrs. Evershed nor the defendants have at any time had possession, under the sheriff’s title, of any portion of the property outside of the Ker residence and inclosure; nor did any one of them, at any time prior to the institution of this suit, set up any claim or pretension to. more.
¶21They never made any demand or claim to any portion of the rents of the four i>roperties on Claiborne street, and paid no portion of the taxes thereon.
¶22There is no positive proof as to what were the real and actual intentions of the parties antecedent to, or at the time, of the confection of the Cliiapella mortgage, or of the sheriff’s sale.
¶23All of the contracting parties and the officers who execiited them are long since dead, and nearly twenty years have elapsed since the former was passed. The determination ' of this case depends solely upon this evidence. There was no objection xxrged by the defendants to the admissibility of parol evidence. The right of the plaintiff to introduce it was conceded.
¶24The opinion of the majority die court holds adversely' to the claim of the plaintiff, and, as I under ocaud it, maintains two propositions, the result of which is an adverse judgment.
¶25They are: 1st. That the recitals of the acts of mortgage and sale are perfectly formal and unambiguous in terms, and no contemporaneous error, or mistake is shown to have existed at the date of their execution; and 2d. That one was execxxted by a notary who seems to have pursued the recitals contained in former titles, and the other by a sheriff, in the execution of a judgment which is not assailed as erroneous.
¶26To put it tersely, the opinion holds that the evidence of the alleged *24error is insufficient, and cannot prevail against the formal acts of the public officers named.
¶27I respectfully submit that, both propositions are untenable.
¶281. While it is perfectly true that there is no ambiguity in either act, it seems clear to my mind that, from the manner in which these acts have been treated for so many years by all the parties to them, the fixed and definite boundaries of the respective possessions thereunder, should control and govern their recitals.
¶29The Code provides that in the interpretation of an agreement “ when the intent of the parties is doubtful, the construction put upon it by the manner in which it has been executed by both, or by one, with the express, or implied, assent of the other, furnishes a rule for its interpretation.” R. C. 1956.
¶30Now, it is contended, this in’ovision does not apply to plain and unambiguous instruments, ffiit this is clearly incorrect, because we find, in a preceding article in the same section, that “ all the articles in this section contain rules established by law for discovering the in ten f, when either the words are ambiguous or circumstances under it doubtful.” R. C. C. 1945.
¶31The phrase “ circumstances under it doubtful ” does not occur in the corresponding article of the French Code, and yet the Court of Cassation lias frequently applied the principle contended for here, to parallel cases, for the purpose of ascertaining the intent of the parties. Toullier, fr. Ill, 2 p. 212, No. 320, and note 1; Laurent, Droit Civil, vol. 16, No. 504, p. 583.
¶32In Marcotte vs. Coco, 12 R. 167, it was applied to a state of facts quite similar to the one presented here. In that case the Court said:
“ The testimony of McConley was objected to on the ground that parol testimony cannot be received for the purpose of controlhxj the express condition of the deed * * But the testimony was admitted, and we think properly.
“ Courts of justice are bound, in the investigation of contracts, to seek the, common- intent of the parties rather than to adhere to the literal sense of the terms.
“ When the intent of the parties is doubtful, says the Code, ‘ the construction i>ut- upon it by the manner in which it has been executed by both, or by one, with the express or implied assent of the other, furnishes a rule for its interpretation.’ Art. 1951. Parol evidence is clearly admissible to prove, in what manner a contract has been executed by the parties, and how far, in a contraed for the sale of land, the possession has been conformable to the deed.
*25“ In the case now before us the tradition was made by a survey and by planting posts on the line. … All parties have acquiesced in this state of things. The tradition was effected by acceptance of the thing sold, as understood by the parties at the time, and, in our opinion, this practical interpretation by the parties themselves ought not to be disturbed.” (Italics are mine.)
¶33In Palanquo vs. Guesnon, 15 La. 311 — a leading case, and one that is cited in many recent opinions — the .Court- said :
“ The jdaintiff now seeks to recover a lot of ground, such as is called for by his deed of sale. Defendant resists this claim on the ground that there was evidently a mistake and misdescription in the instrument; that the piece of ground intended to be sold by her, and purchased by the plaintiff, was that of which he had taken possession in 1830 j wlvieh he had improved, and in which he had been living since. * * Upon the whole, the evidence establishes beyond a doubt, the error alleged by the defendant, and the shameful bad faith of the plaintiff in attempting to take advantage of it.” (Italics are mine.)
¶34The facts detailed are almost identical with those of the instant case, the terms being reversed.
¶35I resxmctfully submit that, notwithstanding the terms of the acts in question are perfectly formal and free from ambiguity, the proof administered discloses the manner in which they were executed by all the parties to them, and that their- possession was not conformable thereto; that this proof controls “ the express conditions of the deeds,” and that “ this practical interpretation (of these acts), by the parties themselves, ought not- to be disturbed.”
¶362. The suit, of Mrs. Everslied was not simply for the recovery of the debt she held against Ker, but for the enforcement of the Chiapella mortgage also, because she specially petitioned for the recognition, and, under the judgment and ji. fa., the identical property therein described was'taken, and no more. If such was not the purpose, in the execution of her judgment, why did she limit- the seizure to that part of the property described in letters A and C, and did not seize and sell that described in letter B ? Can it be supposed that she desired to purchase these fragmentary portions of property, or that any one else w.ould! Certainly not.
¶37This course of dealing with Iter’s property is conclusively against the theory that it was an ordinary execution sale. It was a proceeding vid ordinaria for the foreclosure of the Chiapella mortgage, and nothing else.
¶383. There is no force, in my opinion, in the second proposition maintained in the opinion of the court.
¶39*26The Code provides that “judicial sales are subject to the rules laid down for public sales in general.” R. C. C. 2617.
¶40“The adjudication is the completion of'the sale; the purchaser becomes the owner of the article adjudged, and the contract is from that time subjected to the same rules which govern ordinary contracts of sale.” R. C. C. 2608.
¶41These rules are that “in all cases where no specific provision is made under the present title, the contract of sale is subject to the general rules established under the title of Conventional Obligations.” R. C. C. 2438.
¶42Thus we have it proved that judicial sales are subjected to the rules governing obligations in general. This court has applied these rules to judicial sales in many cases, and particularly in the following, viz: Hall vs. Nevill, 3 Ann. 327; Davenport’s Heirs, 3 N. S. 679; Stewart vs. Boyd, 15 Ann. 171; Jones vs. Crocker, 1 Ann. 440; Heirs of Cartle vs. Floyd, 38 Ann. 583.
¶43In quite as many cases error has been assigned in judicial sales; and maintained by the court, and notably in the following, viz: Buard’s Heirs vs. Buard, 2 La. 3; Chaion vs. Pepin, 13 La. 534; Williams vs. Hunter, 13 Ann. 476; Robert vs. Boulet, 9 Ann. 29.
¶44If then judicial sales are subject to the rules governing conventional sales and conventional obligations — and they are — what becomes of the argument that, forsooth, Mrs. Evershed holds under a perfectly formal adjudication by the sheriff, and that the Chiapella mortgage was passed by a notary who employed the identical descriptions contained in the titles of his authors, hence they are not open to acharge of error such as assigned in this case Í
¶45To state the question is to answer it.
¶46It is argued that because. Henriquez also obtained a judgment and seized this property, and is not made a party, therefore, this case must fail.
¶47Henriquez did not buy any part of the property.
¶48His judgment was satisfied by Mrs. Evershed, who was the adjudicatee. Besides, this question is not raised by the defendant’s answer.
¶49It is said plaintiffs did not ask the annulment of Mrs. Evershed’s judgment under which the sale took place, and that is a bar to plaintiffs’ recovery. It was extinguished in greater part by her purchase of the property, and has ceased to exist pro tanto.
¶50But it simply pursued the tenor of the petition and mortgage, and perpetuated rather than cured the error. Besides, the defendants tendered no plea of res adjudieata or estoppel, and this court caunot supply them.
¶52*27It is my deliberate judgment that the case is with the plaintiffs, and that the judgment ought to he affirmed.