¶1On Application por. Rehearing.
¶2(a) The first ground assigned in defendant’s application is, that the.title he derived through Bielkiewicz, from the succession of Palmyra Amet, was not a simulation, for the reason that he actually and really paid therefor $1805, which the plaintiff received and still retains, and as the counterpart of that statement counsel refers to the evidence of the defendant and Bielkiewicz on that subject in support of the defendant’s reconventional demand for that sum.
¶3On page 18 of defendant’s original brief we find this statement, viz:
“ At the trial the only evidence offered by plaintiff to sustain the charges of fraud in the judicial sale of May 18, 1878, was the testimony of M. M. Dufour, given against objection. His statement con*580fiicted with the prooes verbal and the testimony of Bielkiewiez and A. L. Boyer. The remainder of the plaintiff’s case was made up of documents heretofore recited and of specific offers of the judgment, writ of execution and return thereon in suit No. 7951, being Jacques A. Boyer vs. Voley Amet. These do not show that a dollar was ever paid upon that judgment, nor is there any other evidence in this record which shows that this plaintiff has ever made any payment upon it.
“On the part of defendant the following evidence was offered: Petition and order for family meeting to advise as to sale of property of Amet minors; prooes verbal of family meeting, homologation thereof and order of sale; Appraisement of the property, that of the land being $1305; account of J. A. Boyer, tutor of Voley and Albert Amet; account of A. L. Boyer, tutor of Laura Amet; answer and call in warranty in suit No. 7794, being J. A. Boyer vs. Artigues and the Sheriff; citation to A. L. Boyer and return in said suit; certificate of date of fifing of mandate of the Supreme Court in said suit.”
¶4Relying upon this summary by defendant’s counsel, the testimony to which our attention has been for the first time attracted, in the present application, escaped notice in our original investigation and report.
¶5But, in our opinion, this testimony does not improve the defendant’s case.
¶6The substance of it is as follows, viz:
¶71. That M. M. Dufour attended the public sale and bid in the property at the request of the defendant, who furnished him some money for that purpose.
¶82. That, instead of taking title in his own name, he (Dufour) transferred his bid to Bielkiewiez, at the latter’s suggestion, and turned over to him the money he had received from the defendant, to whom Bielkiewiez was to transfer the property.
¶93. A. L. Boyer says that “at a former sale (he) was authorized to buy in (the property) for the heirs, and he thought (he) was taking the same position in this instance; that he must have given Mr. Dufour, for that purpose, $700 or $800.” But, notwithstanding this, statement, he subsequently said, and in the same connection, that “ he bought the property from Bielkiewiez, and paid him for *581it the amount mentioned in the sale from him to (witness),” i. e., 81560.
¶104. Bielkiewicz says Dufour bid in the property, and that afterward he called his (Dufour’s) attention to the fact that there were judgments against him, and said (to him) “ you had better give me your bid;” and he consented and turned over to him (witness) the money the defendant had furnished him, and paid the amount of his bid, 81305, to J. A. Boyer, tutor, he (Bielkiewicz) furnishing the difference; and on the same day conveyed the property to the defendant for 81560, And, in the same connection, he said, “After the (act of) sale was passed I returned him (defendant) the same money I took from Dufour.”
¶11There is an irreconcilable conflict between these statements; and taken altogether, it is utterly impossible to say who paid for the property, or what was paid for it, or with whose money the price was paid. And to further confuse the matter, J. A. Boyer, tutor and administrator, when interrogated fails to state that he received the money for the property sold.
¶12But even conceding that the money was paid, the defendant does not insist that he acquired the title. And in so far as the restitution of the sum expended is concerned, the defendant’s mortgage in favor of Artigues sent the property to sale, and it realized over 81900, and this sum inured to his benefit and overpaid him arid nothing is due.
¶13(t>) The date from which the twelve months’ prescription begins to run is correctly stated as that of the final decree of this court in July, 1889. The judgment of the District Court, it is true, was affirmed on appeal, but during the pendency of the defendant’s suspensive appeal its effect was held in suspense and it was not exigible. Had the defendant instituted suit after her appeal had been taken, it would have been considered as an abandonment of it and possibly defeated her just demands against the defendant altogether.
¶14On other grounds nothing further need be said.
¶15With reference to the application of the plaintiff and appellee for a rehearing for the purpose of urging her demand for an increase of judgment in her favor, it need only be said that our decree simply affirms the judgment of the District Court, and its decree, was deliberately and carefully rendered. There is no appearance of it having been the result of accident or oversight. In the court below there was no suggestion of the kind made by plaintiff’s counsel.
¶16*582•There was no motion made for a new trial and plaintiff did not appeal. In this court no error apparent in the record is suggested on which we could act in making the desired change. The decree of the judge a quo is not to be lightly considered or changed for other than substantial considerations and when injury has been sustained.
¶17Rehearing refused.