8 Rob. 485 | La. | 1844
This case was before us in December, 1842, when the judgment was reversed, and the cause remanded for a new trial, 3 Robinson, 345. During the pendency of that appeal, which was devolutive in its character, Furst, the plaintiff in the original suit, took out an execution, and on it had the land alleged to be mortgaged, sold, and purchased it himself, in the month of April, 1842. On the 12th December, 1842, the judgment of this court was rendered, annulling the judgment or decree under which Furst purchased the land, and it was filed in the District Court on the 13th of January following, when a rule was taken against Furst, by the counsel for the Beaulieus, to show cause, why the adjudication made in the month of April previous should not be set aside and cancelled, on the ground that the judgment under which it was made, had been annulled and set aside by the Supreme Court. To this rule Furst excepted on the ground,* that the proceeding by rule was irregular and illegal, and that the adjudication and sale could only be set aside by a direct action in the ordinary form ; and for answer, in case his exception should be overruled, he averred, that he had acquired a good title to the land in question, by virtue of the adjudication and sale made by the sheriff under his execution ; and further, thqt creditors of his own had acquired privileges and
The exception was overruled, and upon the trial, the counsel for the Beaulieus gave in evidence the documents necessary to show that the judgment under which the sheriff made the adjudication and sale had been annulled and reversed. On the part of Furst, the execution under which the sheriff acted, with his return thereon and deed, was given in evidence. A certificate of the recorder of mortgages for the parish of Jefferson was also introduced, which states, that on the 4th day of the month of January, 1843, a judgment rendered by the Commercial Court of'New Orleans, in favor of J. & L. Gamier against Furst, for the sum of $6000, subject to a small credit, was recorded in said office; and a notice of seizure under an execution issued upon said judgment, dated January 18th, 1843, was also presented.
In the sheriff’s deed it is stated, that Furst became the purchaser of the property for $3400, payable cash, of which sum, $620, 62 was received for costs, and the balance of the price of the adjudication, being $2779 38, was retained by said purchaser on account of his judgment, he being the plaintiff in the suit.
Upon these facts the court ordered, that Furst should, within ten days, pay into court the price .of adjudication, as stated in the deed, or, in default of his so doing, that the rule should be made absolute, and the sale and adjudication annulled. From this judgment Furst has taken a devolutive appeal, as have J. & L. Gamier, who set forth that they have a judgment duly recorded, and are injured by the judgment rendered against Furst.
As between the plaintiffs in the rule and Furst, there cannot be a question as to the correctness of the judgment of the District Court. That Furst cannot have a good title to the land, and at the same time retain the price as a credit on a judgment which has been annulled, is too clear to admit of argument. He must
As between the appellants, Gamier, and the appellees, we think the case is equally clear in favor of the latter. Admitting these appellants to be judicial mortgagees, as stated by them, their rights rest entirely upon the fact that Furst has a title to the property in question. If that be void, all rights acquired upon the supposition of the title being valid, become void also, and the mortgage must fall with the title. The eviction of a mortgagor by a better title than that under which he holds, relieves the property from all liens acquired or granted under the impression that the title was good.
It is therefore ordered, that the judgment be affirmed ; the appellants paying the costs of their respective appeals.
