the mortgagors, became the purchaser, and to secure the payment of the purchase money he gave a twelve months' bond for $30,695.80, with interest at ten per cent. per annum, with two sureties. This bond contained a declaration of mortgage on the property sold, and an acknowledgment that it was to have the force of a final judgment, but it was not recorded. This was about one month prior to the donation made by Ackley Perkins to the plaintiff. The twelve months' bond not being paid, an execution was issued upon it on the 10th of October, 1865, and under this execution the property was sold on the 6th of January, 1866, and William S. Pike, one of the sureties of Perkins on the bond, to protect himself,became the purchaser for the sum of 846,725, received a deed from the sheriff, and took immediate possession of the premises, and continued in possession until the commencement of this suit in October, 1871, a period of five years and nine months; and he and his heirs have been in possession ever since.
The defendant, William S. Pike, amongst other things, *244 interposed the plea of prescription of five years, under article 3543 of the Revised Civil Code, being a re-enactment of the statute passed March 10, 1834, which declares that "all informalities connected with, or growing out of, any public sale made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sale, after the lapse of five years from