13 La. 79 | La. | 1839
delivered the opinion of the court.
The petitioner avers, that at a probate sale of the estate of G. W. Dortch, deceased, on the 11th April, 183.4-, he purchased as the last and highest bidder, for four thousand one hundred and fifty-five dollars, all the right, title and interest of the deceased, to a tract of land of 500 arpents, situated on Black Creek, in the parish of East Feliciana, and subject to a lien or privilege in favor of James' Bradford, the vendor of the deceased, for the sum of three thousand eight hundred and fifty dollars; that the overplus of that sum was, according to the conditions of sale, to be paid in ready money to the defendant, E. G. Dortch, as the widow and tutrix of the minor children, 'of the deceased; that he tendered to the parish judge, by whom the land was sold at auction, certain
The injunction was accordingly granted, until the further order of the court.
The defendants, for answer, insist that the plaintiff, from his own showing, is not entitled to recover; that the land was advertised and sold for cash; and that the whole of the four thousand one hundred and fifty-five dollars ought to have been tendered in money, and not the notes and surplus only over the amount of the vendor’s lien; further, that before the sale, all the rights' and privilege of James Bradford, the vendor, were seized under a fi. fa., at the suit of the Louisiana Bank, in virtue of a judgment against him; that due notice thereof was given to the defendants, previous to the adjudication ; and that thereafter, all the rights of the vendor, were divested by a sheriff’s sale, made to D. M. Bradford and Beauchamp.
The plaintiff obtained leave to file an amended petition, claiming one thousand dollars damages, which he alleges to be the value of the rents of the land while withheld from him.
The District Court gave judgment as of non-suit against the plaintiff, and he appealed. '
According to the terms of sale, as fixed by the creditors of the deceased, and set out in the prods verbal thereof, it is stated that “ the land and negroes will be sold for cash, the personal property on a credit of twelvemonths, purchasers to give notes with approved personal security, bearing an interest of ten per cent, per annum after due, until paid.” The
It appears, moreover, as is alleged in the defendants’ answer, that a short time before the adjudication, the rights of James Bradford, the vendor, were seized at the suit of the Louisiana Bank, and notice thereof given to the defendants.
Under this statement of the case, the principal question to which our attention has been drawn is, whether, by. this adjudication, all the right and title of the deceased to the land, passed to David Bradford, the plaintiff 1
It appears to us, that inasmuch as the land was sold, subject to the lien of James Bradford, the vendor, all that could be required of the plaintiff was, that he should pay the overplus in money, which it is not disputed he offered to do. He could not be also required to pay in cash, the amount of the lien, for that would have been to contradict the very terms of the sale ; and he would have still held the land liable to the vendor’s claim, so that he might have been compelled to pay the same sum twice. This, we think, is the only effective and reasonable interpretation that can be given to the conditions of the sale, as disclosed in the proces verbal.
But the defendants’ counsel insist, that the seizure by the Louisiana Bank, of the vfendor’s privilege, before the adjudication, and its subsequent sale, divested James Bradford of all his rights against t.he successsion of Dortch. This is a question not necessary for us to decide, and we, therefore, express no opinion upon it. All the parties interested are not before us; and in whomsoever the privilege of the vendor may abide, whether in himself, or the purchaser under the seizure, is a matter to be settled with the plaintiff, who takes the land subject thereto.
Nor do we conceive, that the tender of the notes of James
With respect to the claim for damages set up by the plaintiff, the testimony is scant and unsatisfactory, and does not enable us to form any opinion upon the subject.
We think the court below erred in non-suiting the plaintiff; that the injunction'ought to be reinstated, and made perpetual, and the cause remanded for further proceedings.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed ; that the injunction be reinstated and made perpetual; that this cause be remanded for further proceedings according to law, and that the appellees pay the costs of this appeal.