delivered the opinion of the court.

The appellant, Winter, having sold to the late H. S'. Thibodeaux, a tract of land which formerly belonged to Walker Gilbert, sued the executors of his vendee for the price, and recovered judgment; subject to the condition, that its effect should be suspended until Winter should give security in the sum of fifteen thousand dollars,.to protect the defendants against the danger of eviction, in consequence of legal mortgage on the land, in favor of the minor heirs of Walker Gilbert, resulting from the tutorship of Lloyd Gilbert, to whom the land belonged at the tipie he was appointed their tutor.

The present suit was instituted by Winter, to cause that restriction as to the effect of his first judgment, to be judicially rescinded, on the allegation, that the land had been sold for taxes due by Walker Gilbert in 1813 and 1814, that he had purchased the land from Suares, who bought it at the treasurer’s sale, and that he holds it free from all liens and mortgages subsequent to the year 1814, and that the legal mortgage set up by the minors Gilbert, never attached.

In this suit the heirs of Walker Gilbert intervened and set up their mortgage, averring, that the land belonged to Lloyd Gilbert their tutor at the time of his appointment, and that they have a judgment against him for a large balance on account of his tutorship. They further represent, that they have instituted an hypothecary action against the representatives of Thibodeaux, which is yet pending, and which they pray may be consolidated with this suit. The representatives of Thibodeaux, deny generally the allegations in the petition, they allege that the first judgment rendered against them in favor of Winter, not having been appealed from, has become final, and that they are not bound to pay any part of the money until security be given according to that judgment.

In the hypothecary action, Winter was called in warranty, ancj the two cases having been consolidated, were tried together, judgment was rendered in favor of the heirs of Gilbert, and the original plaintiff appealed.

The case presents two questions for the consideration of this court: 1st. Has the plaintiff acquired under the Treasurer’s sale for taxes, the title of W. Gilbert, as it existed in his life-time, and free from the mortgage of his minor heirs, which arose after his death, and while the land was in possession of Lloyd Gilbert, their tutor % and, 2d. Have the heirs of Gilbert exhibited such evidence in the hypothecary action, as entitles them to have the land sold, in the hands of the heirs of Thibodeaux, as third possessors.

I. The only evidence exhibited in support of the plaintiff’s title under the treasurer’s sale, is his deed of conveyance to Suares. The land is described as a tract of ten arpénts, more or less, situated in the parish of Lafourche Interior, and is declared to be sold for state taxes for the years 1813 and 1814. The sale for arrearages of taxes, took place on the 11th of February, 1828. The tract of land sold by Lloyd Gilbert to Winter, and by the latter to Thibodeaux, is discribed as a tract of ten arpents front on each side of the Bayou Lafourche and containing eight hundred superficial arpents. In addition to this striking discrepancy, this court has repeatedly decided that a title cannot be made out under a collector’s or treasurer’s sale for taxes, without exhibiting legal evidence of the original assessment of the tax due. In the present case no such evidence is offered, and we are of opinion that the treasurer’s sale, conveyed no title. 6 Martin, N. S. 347. 7 Louisiana Reports, 46.

II. In support of their claim in the hypothecary action, the heirs of Gilbert exhibit a judgment rendered in their favor, against the representatives of L. Gilbert, their former tutor, for twenty-one thousand four hundred and forty-five dollars. His appointment took place on the 2d of September, 1818. The tract of land in question became the property of Lloyd Gilbert in the year 1820, having been sold as a part of the estate of Walker Gilbert, purchased by Thomas C. Nicholls *199and by him conveyed to Lloyd Gilbert, who sold it to Winter two years afterwards. Under the provisions of the Old Code, in force at that time, the minors had a tacit mortgage on the property of their tutor, from the day.of his appointment. Old Civil Code, page 454, article 15.

The mortgage, therefore, in our opinion, attached to the tract of land in question, as soon as it became the property of the tutor. The judgment recovered by the minors, against their tutor or his legal representatives, is prima facie evidence of the amount due, the payment of which is secured by the legal mortgage. The judgment in this case, is not attacked as fraudulent or collusive. 1 Louisiana Reports, 379.

We are, therefore, of opinion, that .the District Court did not err in ordering the land to be sold to satisfy the mortgage of the heirs of Gilbert.

But the appellees, the heirs of Thibodeaux, complain of the judgment rendered in their favor, in warranty, against Winter, by which the latter was condemned to pay only the price of the land, according to the original contract of the sale from Winter to their ancestor, whereas he ought to have been condemned to pay the value of the improvements made by them on the land, and such damages as they may suffer in the premises.

The judgment expressly reserves all questions in relation to improvements and damages, as well as for fruits and revenues between the different parties, for future adjudication, under an agreement found in the record.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs; and it is further ordered, that the case be remanded for further proceedings in relation to improvements.