1 Mart. (N.S.) 165 | La. | 1823
delivered the opinion of the court. The petitioner alleges that in the year 1817 he recovered judgment against the heirs of Phillip L. Alston, for the sum of $5360, with
That certain persons, viz. Oliver Roliff and others, had illegally entered on the premises, and though often requested, had refused to remove therefrom.
Samuel Robertson and wife filed their bill of intervention, in which they stated that they were the lawful owners of 500 acres of land, situated in the parish of Feliciana, the title to which they acquired in the following manner. That a certain Oliver Pollock being the proprietor of 2000 acres of land, situated on the river Mississippi, including the mouth of the
After thus exhibiting the nature of their title, the interpleaders go on to state that they may be injured by the proceedings carrying on against the original defendants; they therefore pray leave to intervene—be made parties, and that the right to the land and possession of it, may be decreed to them.
They were admitted as parties, and subsequently filed the following pleas:
That Baudin had not a good title to the premises; that they, the interpleaders, had—and that in addition thereto they held the land by 10 years prescription.
The cause was submitted to a jury, who found a general verdict for the plaintiff, there was judgment accordingly, and the defendant appealed.
The decree, which is contended to have that effect, was given in an action in which the present plaintiff sued the heirs of P. L. Alston, to compel them to comply with a purchase made by their ancestor, of a certain tract of land sold to satisfy a judgment he had obtained under the Spanish government against O. Pollock. In his petition the plaintiff alleged that the reason why Alston had not complied with his contract, was, that certain persons, and among others the interpleaders in this cause, had set up a title to the premises—and he prayed that they might be compelled to produce their title, if any they had, in order that it might be adjudicated on, and that they might also be compelled to deliver up possession of the premises, as the property of Oliver Pollock.
To this petition, the parties now intervening put in a defence, containing a general denial of all the allegations therein.
On the issue thus joined, the court decreed
The plea of res judicata is not sustained by this judgment. If it was at all final, it was in favour of the defendants, not against them; but we consider it one of non-suit, which settled nothing but the costs in that cause, and left undecided all questions growing out of the pretensions of the respective parties.
After this judgment we find another on the record, for the defendants generally. Whether the parties against whom the petition had been dismissed, were included in this, and the appeal taken from it, we cannot discover, but considering it as if they were, the result is the same; for the judgment of the district court on the second trial after the cause was remanded, is confined expressly to the matters in dispute between Baudin, and the heirs of Alston, and reserves the rights of all the other parties.
Proceeding, therefore, to examine the case on its merits, the first thing to be inquired into is the title of the plaintiff.
He shows a grant from the Spanish government to Trudeau for the premises, and a sale
The same answer must be given to the third objection, as to whether the attorney in fact, who represented Pollock, was regularly authorized to do so, and to that which complains that it is not shown that Conway was subrogated in Baudin’s rights. The evidence on which the Spanish tribunal directed the property to be sold to satisfy both the balance due Baudin on the judgment, and the money which the surety had already paid, is not before us. We must presume, until the contrary is shown, that Conway was duly subrogated in the rights of the creditor he had paid, more particularly when that creditor joins in a petition that a sale should be made to satisfy the surety. The appellant has doubted whether such subrogation could be made under the Spanish law, but it appears quite well settled that it could. Curia Phillipica, lib. 2, c. 6. Cesion, nos. 40 & 43.
It is next urged that there was a novation
The next objection, and that mainly relied on by the defendant, is that the right, title and interest of Pollock to this land never passed to Alston the purchaser, and consequently that Baudin, in buying Alston’s right, did not acquire a good title to the premises in
That the payment of the price, by the bidder at a cash sale by a sheriff, is indispensable to a transfer of the property, if required by the plaintiff at whose suit the sale takes place, we concede. But this condition is one which is introduced for the benefit of the person to whom the money is to be paid, and consequently may be waved by him if he thinks fit. If he chooses to give a receipt for the sum for which the property sold, and acknowledge satisfaction on the execution, the title will vest in the buyer, although the latter may have given his obligation to pay at a distant day, or even have obtained a release without making any payment whatever. We regard the payment as a question entirely between the person at whose suit the property is sold, and the bidder, one with which the owner of the property has nothing to do except to insist that their arrangements shall
In the case now before us Baudin, either from circumstances over which he had no control, or from other reasons, let a number of years elapse before he brought suit to make the vendee comply with his contract, but in that suit he obtained judgment against him for the price. This surely was an affirmance of the sale, for it was a claim to have the benefit of it. An execution issuing under this judgment might legally be satisfied out of the land which formed the consideration of the contract on which that judgment was rendered. For the title vested in the buyer, the moment the plaintiff had his demand to enforce the sale, sanctioned by a judgment of the court.
The case of Durnford vs. Degruy's syndics, 8 Martin 220, contains nothing contrary to this, for there the plaintiff insisted on having the
It is contended that the land was sold at the suit of Conway and Baudin; that Baudin alone brought an action against the purchaser, and that it required the plaintiff to show that both the persons, for whose benefit it was disposed of, should have affirmed this contract by suing for the price. The judgment of the Spanish tribunal was, that the premises be sold to pay Baudin what was due of the original judgment, and to satisfy Conway the surety, for what he had already paid for Pollock. As the amount which Baudin has received does not appear to exceed the balance due him, we think there is not any weight in this objection. Conway could only claim a share in the execution in case of an overplus.
Disposing of these objections, brings us to the title of the defendants, and the question which arises on it, is one of greater difficulty than any other the case presents. They claim under a sale of the premises from Oliver Pol
The sale is attacked by the plaintiff on several grounds,
1st. Because the vendees assent to the conveyance is not given in the instrument by which the land is sold to him. This objection we think unfounded. Consent may be shown by evidence dehors the instrument, and in this case it is proved by the buyers afterwards conveying part of the premises, and declaring they were the same which he had acquired by deed from O. Pollock. Bradford's heirs vs. Brown, 11 Martin, 217.
2d. Because, it was made under circumstances which render it subject to a just suspicion of being done with a fraudulent design. Admitting this to be proved, we would not be authorised to annul the sale; it is not a just suspicion of fraud, but fraud itself, that should be the result of the evidence.
Whether the sale was fraudulent or not, is the main subject of inquiry. If it was not, it appears to us to have legally passed this title to Pollock, antecedent to the sale to Alston. If it was, the defendants are without title. Fraud is never presumed, except in cases of
We are prevented from acting on this conclusion and giving judgment accordingly, by reason of a verdict obtained by the defendant in the court below. It has been repeatedly decided in this court that in cases where fraud was put at issue, we should readily yield our conclusions, to that which twelve of our fellow citizens, hearing the witnesses, and knowing the parties, had formed on the same matter. The difficulty of acting in obedience to this rule in the instance before us, arises from the loose manner the pleadings are made up. It does not appear from them, that fraud was alleged or denied, though from the proof adduced, and the course the cause has taken, it is extremely probable it was submitted to the jury and entered into the consideration on which their verdict was founded. Under these cir
The plea of prescription does not appear to us to be sustained, the record shews that a suit was pending in the beginning of the year 1803 between Hamilton Pollock in behalf of Janett Pollock, and the present plaintiff in regard to this land, and we cannot learn that it was terminated ten years before the suit commenced by Baudin in the year 1814. The fact of possession also is not so clearly established as it might be ; but admitting that it is fully made out, the pendency of the suit interrupted the prescription.
It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, and it is