The opinion
MOISE, Justice
(dissenting).
I respectfully dissent because of the well-known pronouncement that the office of a judge is jus disere, not jus dare — to interpret law, not make law or give law.
When our learned Brother below, over the objection of the minors, ordered that each of the ten properties be sold separately to the highest bidder, with the exception of the adjoining properties 1036 Canal Street, and 114 South Rampart Street and 118 South Rampart Street, which were to be offered en masse, and after being thus offered they were to be again offered in globo with the adjoining property located at 1028 Canal Street, this procedure was not authorized by any article of the Code, nor does our search reveal that there is any decision of this Court so to do.
We, sitting as a court, must always be mindful of the danger of having a theoretical concept established as fixed rules of law. That is what has been done here in the majority decision, and to bolster up that decision reference is made to Article 1336 of the LSA-Civil Code by providing that he
“ * * * regUiate this mode as may appear to him most convenient and most advantageous for the general interest of the co-heirs, * *
*321 but the last clause nullifies the construction given by the Court. It reads:
“ * * * in conformity, nevertheless, with the following provisions.” Of the Code.
It is stated in the majority opinion that the judge exercised his discretion-. The exercise of a discretion is defined in Webster’s dictionary as: ._
“The latitude of decision within which a court or judge decides-questions arising in a particular case, according to the circumstances and according to the judgment of the court or judge, not expressly controlled by fixed rules of law, * * *". (Italics ours.)
The fixed rules must be “in conformity, nevertheless, with the following provisions.” Of the Code.
This Court has set at rest the interpretation of this article when it made the following pronouncement:
“When co-owners cannot agree upon a partition of property which they own in common, a judicial partition becomes necessary, and if one of them demands it by suit, it then becomes the duty of the judge before whom the case is tried to determine the method of making it; that is, whether it shall be made in kind or by licitation.” Raceland Bank & Trust Co. v. Toups, 173 La. 742, 743, 750 , 138 So. 652, 655 ; Lasyone v. Emerson, 220 La. 951 , 57 So.2d 906 ; Dobrowolski v. Dobrowolski, 215 La. 1078 , 42 So.2d 760 ; Fabacher v. Fabacher, 214 La. 940 , 39 So.2d 426 ; Walker v. Chapital, 218 La. 663 , 50 So.2d 641 .
In Cameron v. Lane, 36 La.Ann. 716 , the Court said that:
“ * * * the judge may appoint experts on the filing of a petition to ascertain and report whether the property can or cannot be conveniently divided in kind.”
In the Succession of Dumestre, 40 La. Ann. 571 , 4 So. 328 , the Court held that a sale can be ordered only upon “proof that ' the property cannot be conveniently divided in kind.”
Article 1339 of the LSA-Civil Code reads:
“When the property is indivisible by its nature, or when it cannot be conveniently divided, the judge shall order, at the instance of any one of the heirs, on proof of either of these facts, that it be sold at public auction, after the time of notice and advertisements prescribed by law and in the manner hereinafter prescribed.”
The authorities and quoted Article of the Code are an affirmative of the position taken in this dissent.
Thus, we see the limit of the power of a judge to name experts is—
(a) To see if the property cannot be divided in kind; and
*323 (b) To name experts or appraisers to determine and fix the value of the property.
But, in the case here, and such is my understanding of the record, after the manner in which the partition should be made by licitation, the court called in experts to determine if his discretion “in ordering, as shown supra”, was customary or wise. There is no authority to call in experts, except in above cited instances, neither in the code nor in decisions, and particularly is this true after a determination of a partition by licitation.
The Code even-provides that in order to determine whether there should be a cash or credit sale, a family meeting must- be convoked to determine the terms of credit that is to be authorized. Article 1341 of the LSA-Civil Code; Succession of Morgan, 12 La.Ann. 153 ; Succession of Richardson v. Heirs of Richardson, 52 La.Ann. 1402 , 27 So. 890 ; Fix v. Koepke, 44 La. Ann. 745 , 11 So. 39 .
The order given by, our learned Brother below will not be shown to be granted in Chapter 12 of the Revised Civil Code, relating to partitions, nor will it be found in the subdividing sections of such general headings of 1, 2, 3, 4, 5, 6 and 7.
I do not doubt the sincerity of any judge nor of any court. They have a right to their opinion, but I must be governed by a concept of my own duty, and to reach a conclusion for dissent, I should take into consideration that minors are objecting, that the parties do not agree, that the property is inventoried at $1,800,000, and that such a procedure would deter bidders, because few would be able to make a bid in globo and few could raise such an amount of money for the entire property or the most desirable pieces; the only one who could do so is the opulent. Therefore, I am considering the enterprising ambition of human nature to further extend wealth, the uncertainty of evidence of interested witnesses, the exercise of a discretion not provided for in the Code nor stabilized as to its justice by any decision of this Court, and the countless shadows that dim and darken the understanding; and if the experiment is permitted, it may cause injury to the minors that cannot be righted.
I respectfully dissent.