Defendant is sued herein as heir and legatee of his deceased sister, Hiss Mary Caroline Rawlins, whose suc-'eessioa he is alleged to have accepted unconditionally. Plaintiffs petition, filed on llovemher 23, 1920, alleges that on June End, 1914, the deceased purchased at public auction, certain real estate, duly advertised in the newspiapors of this City, and reading as follows:

"Ilo. 1127 Felicity Street; lot 66 feet by 136 feet, and 101-foot common alley in rear."

The evidence shows that Hiss Rawlins reached the auction exchange just shortly before the property was offered, and that she saw a large, five-foot plan of the property, upon the Auctioneer's Stand, which she could see at a distance, though she was not close enough to read carefully the -dimensions thereon, because of the crowd, and that si e relied entirely upon the newspaper advertisement as above set forth, fhe ¿,lsn offered in evidence, as well as tire proce s-verbal of the auctioneer, shows the description under which the adjudication was publicly made, and which was read in a loud voice before the sale, is a3 follows:

"30ID THIS DAY, at public Auction, at the Real Estate Exchange, ITo, Sil Baronne Street, by order and for account of 2333 NARY EAVDIia

A certain portion of ground situated in tho First District of this City, with all tho buildings and improvements f croon, and designated by tie municipal number 1127 Felicity street, in s guare bounded by da;,p , Haga zinc and Grange 'streets; said lot .neesiures 66 feet, 5 inches 6-l/S lines front on Felicity Street, by a depth on tho side lino towards la-.,p Street of 101 foot 2 inches 4 lines, tlccco a width in the rear of 30 feet 6 inches, thence a further de^tt towards Orange Street of £ foot 4 inches 2 lines, thc-neo a further width in tho rear of 26 feet £ ino es, and a depth on tho side line towards lle.-e.-c: no direct, from Felicity Street to: arde Orange Street of 138 foet G inches and 2/3 lino, tit! ’.he use of a common .'..lloy in the roar — sold to

na. i:.::. o'o crinen *509.j?ei? the 'sum StgRt Hundred Boll*r#.-;f$48eb «efab'óp ' th®' ■foOlowtBg' ’ ’

TEEMS:- One third -'or- inore. casli,':íffll'é&w6-Í&! one «na two- years* 7 per cant per '■ annum Interest andpurohaser pays taxes for' 1914. Shis property is a old sttb jeot to lease expiring September 30, 1914. Act of sale before -F.J, Breyf ous, Esa., JTotary Eub.lio; at acense 'Of purohaser'.'

Hew Orleans , Ja, June 2nd,' 1914 ó

(Signed) C.A, Tessier,

AUCTIONEER.

Immediately after the sale, the purohaser made a deposit of $600 for whioh receipt was given, reading:

"Ho, 1861 Hew Orleans, June 2,- 1914.

Eeoeived; from Mrs. M.M,O'Connor, the sum of Hive Hundred Bollara, on aooount of purchase of the property 1127 Felicity St., adjudicated to her at Public Auction on this day, for the sum and prioe of Forty-Bight Hundred Bollara, as per prooess verbal before F.J. Breyfous, Hotary Public; to whom this receipt must be surrendered as part of the purchase prioe.

$600.00 (Signed) C,A«Tessier & son."

The testimony of the purohaser shows that she declined to accept the property sold her, or to sign the deed tendered to her, claiming the dimensions of same to be different and less than what she believed she had purchased. Her evidenoéf is confusing as to her exact interpretation of the advertisement, and after oareful examination, we are inclined to the belief that the real gravamen of her complaint was the fact that the space on the Camp Street side of the house purchased by her was not sufficient to permit proper or convenient access by the steps leading to the entrance of the house on that side. The pertinent parts of her testimony on this subject appear as follows;

"Q, What did you thinh the 101 feet meant?

A. Well, there used to be a little alley

Q» You do not mean that you thought that alley was 101 feet deep.

A. I did not see the alley at all.

*510Q. Mr, Jonea aaid that the aaverii semen t wag misleading, now the advertisement saya 138 feet and 101 feet. Row, I. want to hnow what you think ia wrong?

A. If I had known T never would have bought the house with the steps out off.

Q. It is the steps you are Oomplaining of?

A. I am oomplaining .that I did'not get 138 fee.t by 66 feet and the steps are out off."

The faots show however, as soon as this onm-plaint was registered with the owner, that plaintiff waa offered, but deolined, thirty-seven inohes additional property off'of the lot adjoining, and lying contiguous to the Camp Street side of the property sold, in order that entranoe could be made from that side of the house. .It further appears that as- soon as thi3 offer was deolined, the |B00 deposit was promptly tendered, a fact admitted hy her as follows:

"Q. Mr. Eessier offered you back this five hundred dollars?

A. Yes, sir.

Q, Almost immediately?

A. Almost immediately.

Q. As soon as you would not take title he offered the five hundred dollars back?

A. Yes, sir."

ye are unable to gather from the evidence, that plaintiff wholly relied upon the more or less indefinite descrip-, tion of the advertisement, for she admits, on cross-examination, that she knew all about the property when she bought it, living "next door" "at the time" and "for a number of years" before she bought it. If the advertisement was in any way misleading, i+ cannot be questioned that from plaintiff's long acquaintance with the location and surroundings of the property, as well as the unavoidable knowledge of the diagonal direction of Felicity Street,*511that the measurements desoribad as ’flol-fbot" oould not have applied to the common alley but only to the property-line measurements parallel to and nearest Camp Street,

We are inclined to the views of the trial Judge as expressed in his memoranda opinion, that the description as given in the advertisement, would have Justified the enforcement of speoific performanoe, but that plaintiff's refusal to either take the property or insist on its tender abrogated the adjudication,

She defendant responds to this suit by exceptions of no cause of action, and prescription of one, three and five years, all of which were referred to the merits by the Judge a quo, and answering defendant pleads that he cannot be made personally liable; that the property in question never fell into his sister's succession for the reason that same was sold in June of 1918, long prior to her death, in September, 1920, and that he never knew of plaintiff's elai* until amicable demand for the payment thereof was made upon him shortly before the institution of this suit, in November of 1920; that in any event, should he be held liable for any part of this claim, which he specially denies, that same should be lodged against the Succession only as an ordinary claim, subject to privileged debts, mortgage, etc., all in accordance with an orderly administration of the estate.

Agreeing as We do, with the conclusions reached by the Judge a quo, that the salé to plaintiff was entirely abrogated by her, with the result therefore, that there was no sale, it follows that plaintiff must be considered as never having been the owner of the property adjudicated to her. Fence, it also follows that the Í500 deposited v/ith the auctioneer, cannot be considered as part payment of the purchase price, but at best, simply earnest money, the double of which she could have recovered from the vendor under Article 2463 of the Jivll Code, but for her withdrawal from the sale.

*512Ilia Supreme Court, in' Etta Contracting- Company v. Bruning, 134 la., 48, roviev/ing and reversing- up.on writ of certiorari, a judgment of this Court (10 Orleans Appl. £50) has exhaustively discussed the confused and unsettled jurisprudence of this State upon the effect or not by public adjudication of automatically j/ussing title from vendor to vendee. Counsel for plaintiff has referred in his brief to the case of i jalan ey v. Aschaffenburg, 143 la. 521, and decisions therein discussed in support of authority for his contention that the deposit made by plaintiff herein must be held as earnest money recoverable under R.C.C. 2463. Vie tale no issue with him upon these authorities, except to hold that they are not convincingly applicable to the case at bar, for tie reason that in-the oiled case3, the sales were contractual rather than public or judicial. Eoiever, in Etta Construction Company v. Bruning, the Court dravs the sharp, distinction between the facts there -under consideration-, where the vendee did not refuse to comply with, but notarially confirmed the adjudication, with other and different facts, such as in 'lashburn v. Creen, 13 la. Ann. 332, where the adjudicates^ refused on demand, to comply with the sale.

In the -former oase, the Court held, reversing this Court, that the defendant's (vendee's) title originated in the adjudication, while in the latter case, interpe-ot ing the ruling- in VTashburn v. Green, it was held as the accepted jurisprudence of the Court, that in all public sales, whether judicial or non-judicial, refusal of the purchaser to comply lith the' terms of the adjudication, precluded'h.3 c ever being considered the ovner of the property sold. It is plain, in the ease before us, that plaintiff is not seeking to enforce- the sale, or to have herself recognised as the o\ ner of the property adjudicated, out the damages sought to be recovered cannot bo alio-, e-.i for tie reason that sho has barred herself from recovery of damages by her own conduct in withdrawing from tic contract, made possible of performance by the vendee's generous offer to deliver *513additional and sufficient property over that adjudicated. Refusal of the tender of the deposit immediately made .to hor, after her refusal to accept the deed, and the additional property, must result in a denial of interest , as elainec! on said deposit. Attorney's fees, or any other damages herein c laimed ,are not reeoverable, and must bo denied.

Rinding no liability for damages on the part of the vendee in thi3 ease, it follovs that none can attach to her succession, or those who have accepted same, though unconditionally. Me find no merit in the pleas of prescription herein filed. The action, if any, arising from th" transaction sued Upon is one necessarily ex contractu, not tortious, and therefore not prescribed in one year. The prescription urged in defendant's brief under R.0.9. £498, is not applicable, no action having- been taken hero'in for dimunition of prioo , or for can-celation of the contract on the part of the buyer.

Defendant has prayed for rejection of plaintiff's petition, at hi„ costs, and judgment has been tlms allowed, but both the evidence as ’.ell as record admissions of the defendant, show that the deposit of J'50O herein claimed has never been returned, and is still in the hands of the auctioneer. This amount should be restored to plaintiff, and the judgment of the trial court should be thus amended. In all other respects the judgment appealed from should be affirmed.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be, and the same hereby is amended, by allowing plaintiff judgment for Rive Hundred Dollars 55500.00) vdthout interest, plaintiff to pay all costs of both courts. As thus amended, the judgment appealed from is affirmed.

JUDGKEHS AESirDBD AKS AFRIRIiRD.

June 5th, 1922.