16 La. 433 | La. | 1840
delivered the opinion of the court.
The plaintiff styling himself administrator, with the will annexed, of one Antonio Villaverde, and suing, also, in behalf of his minor child, (whose name, by an amended petition, appears to be Clotilda S.-Brosnaham ;) and of Manuel and Francisco Villaverde, free people of color, residing in Florida, allege they are the heirs and legal representatives of the said Villaverde, who died owner of a certain tract of land in the parish of Concordia, which the defendant has illegally taken possession of and retains.
Turner appeared and filed various exceptions, which were overruled, when he answered, denying the locus in quo, asserting title, pleading prescription, &c.
Villaverde’s title to the land commenced in 1801, under the Spanish Government; he died the 30th August, 1821, having the day before made a will, in which he bequeaths his property to the plaintiffs; the two latter, bearing his name, are therein shown to be his natural children, by a slave belonging to him, to whom he gives freedom ; and states that the emancipation of the children had been established before.
Two depositions, which appear to have been intended to prove this will, are annexed, and are sworn to and subscribed before H. M. Brackenridge ; but it is not staled in what capacity, or by what authority he acted. They were made in October, 1821; but no probate followed, or was, so far as the evidence goes, attempted until the year 1836. The Legislative Council of Florida, then passed an act, “Entitled an act to authorize the county court of Escambia, to admit to pro-bale the will, &c. of Antonio Villaverde.”
The following document is also annexed :
“Territory of Florida, ) Escambia County. 5
e< Q o/ PeMaeola„
“Received the foregoing instrument of writing this day, from Joseph E. Caro, Esq., keeper of the public archives, as the last will and testament of Antonio Villaverde, deceased. Therefore, the same is admitted to probate, under the act of the Governor and Legislative Council of the Territory of Florida, entitled an act, &c., 4th February, 1836.”
This will was presented to the parish judge of Concordia, under a petition, praying it might be registered and carried into effect. The order of the judge admits the will to be registered in court, according to the prayer of the petition ; this was on the 11th August, 1836.
The defendant, for title, shows that on the 6(h June, 1809, one Joseph Petit instituted a suit before the parish court of Concordia, for the sum of one hundred and twelve dollars and fifty-six cents, on which judgment was rendered, the 17th November, 1812. That an execution issued upon said judgment, by virtue of which the tract of land in question was sold to Jonathan Thompson. Thompson sold to Henry Turner, the ancestor of the defendant, in 1S19; and from the other heirs of Turner it has been attempted to make out title to the defendant.
The cause was tried by a jury, who gave a verdict for the defendant, on which judgment, has been rendered, and from which this appeal has been taken. The record bristles with exceptions and objections to all and every thing done, from the year 1801 to the present date.
The probate of the will by the county court of Escambia, and the proceedings of the parish court of Concordia, in the suit of Petit vs. Villaverde, have been the chief point of contest in argument.
On these matters we have reflected and come to the conelusion, that the decree of the court of Escambia, is a judgment rendered by a foreign court, the jurisdiction of which, not having been questioned, is conclusive with us. Nor can we examine the validity of the legislative act, where it operates on property within their jurisdiction, or authorizes the acts of its own officers. But its extra territorial effect is a different affair, which we protest against admitting, when it comes to operate on the right to real property within the state, or even supposing it to be what plaintiff contends it to be, a mere removal of a personal incapacity. If this incapacity relates to the inheritance of real estate in Louisiana, we are bound to say, they can have no such effect. By the laws of this state, aliens may hold real estate. Let us suppose, that by the laws of Florida they were prohibited from so doing, can it be said that the alien heirs of a man dying in Louisiana, could, by virtue of their capacity in this state, in despite of the laws of Florida, claim his succession there ; or that any legislation of this state could aid them 1 To propose the question is enough to decide it in the negative.
An examination into these incapacities, might not, perhaps, reach the whole matter in dispute, and we prefer to proceed to another part of the case.
The nullities alleged against the judgment under which the property was sold, are, principally, that the defendant was not cited ; and that the judgment was rendered, not by default, and then confirmed for want of an answer, but absolutely ; and that, it consists merely in these words, on the back of the petition: “ Judgment for one hundred and twelve dollars and fifty-six cents, and the costs.”
“ D. LATTIMORE, Judge.”
We cannot say there is no citation. A return is made and endorsed on the petition as follows: “ Notification given, June 8, 1809.”
E. CADWELL, P. C.
It is said by the plaintiff, that Cad well was parish constable : Be it so. Whatever defects there may be, there is, at least, a return of a notification of the suit and a judgment; and we understand, that where a judgment, execution and sale are shown, a court will not inquire into the validity of the judgment.
We'are further of opinion that where, in the investigation of title, a judgment is produced, to which one of the litigants is party, it cannot be inquired into collaterally.
If he be dissatisfied with it, his remedy is by one of the modes pointed out for annulling judgments. If authority to this effect be needed, see 1 Martin, N. S., 1; 2 Idem., 301; 6 Idem., 3; 2 Louisiana Reports, 587 ; 7 Idem., 17 ; Idem., 223.
In the case of Bailio vs. Wilson, 5 Martin, N. S., 214, it was held, that where a sale was made pending the appeal, the execution not being suspended, the purchaser could not be disturbed by the defendant, even after the judgment had been reversed. What a comment does this furnish on the doctrine, that a party to a judgment may attack it collaterally! That case has never, that we know of, been questioned.
If a party suffers his land to be sold under a judgment appealed from, the purchaser has a good title.
If he neglects to appeal, and his property is sold, he may at any time object to the judgment, and in any coon. We do not agree to this.
The objections to the execution are, however, open ; it is said no demand of payment was made ; that it is not shown the land was within the bailiwick or jurisdiction of the officer; that the property was not appraised, or advertised, or properly described.
The return endorsed on the fi. fa. is, “I have, this 19th day of August, 1814, seized eight hundred acres of land, more or less, at Point Pleasant, about seventy-five miles above the town of Vidalia, as the property of the within defendant.”
“ W. WILLIS, Sheriff.”
“Land sold to J. Thompson, for one hundred dollars, on twelve months credit.”
W. WILLIS.
In the sheriff’s deed he recites, that this adjudication was made after having exposed the land to sale according to law. Had this been made part of his return, the case would have fallen to the letter within the case of Lafon vs. Smith, 3 Louisiana Reports, 176. But, admitting this makes a difference, we are of opinion, without going to the extent of the judgment,-in the case of Brashear vs. Barabino et al., 8 Martin, 641, referred to in the above case, that after a lapse of more than twenty years, if the presumption be not in favor of the sheriff’s acts, there are few ancient sales which can be supported. Where is a man, at this day, to look for appraisements, advertisements, &c.
The sale is at tacked, first, “as not reciting the judgment.” The sale recites the title of the suit and writ of fi. fa., which recites the judgment. 2d. “It does not state the property to be in the parish of Concordia.” It describes it “ as situated at Point Pleasant, seventy-five miles above Vidalia.” 3d. Does not “ conform to the return on the fi. fa.”
The particulars of the difference are not set out. We know of no law which, for causes like these, annuls a sheriff’s deed.
The deed is further objected to “as not being legally recorded.” There is a certificate of the parish judge, expressly stating its acknowledgment, and that, it was recorded, July 20, 1816. This recording, it is contended, should have been made by the “ clerk of the county court,” under the law of 1805. 2 Moreau's Digest, 336.
A later law has been overlooked, passed in 1813, which authorized and required such deeds to be recorded in the office of the parish judge : 1 Idem,., 702. There are several other exceptions to these documents, which we do not feel it necessary to notice separately, as they go to the effect of the testimony and not to its admissibility.
■ We conclude that Villaverde’s title was divested by these proceedings. We are, however, prevented from confirming the judgment below, by a bill of exceptions, concerning
The defendant, in order to show title from Henry Turner, produced four acts of sale, none of which are notarial or authentic. These were excepted ■ to, as not being recorded in the parish where the property is situated.
The judge a quo overruled the exceptions and admitted them ; no reasons for this are assigned. The Louisiana Code, art. 2417 provides, “that acts of sale, under private signature, of immoveables, shall have effect against third persons in general, only from the day of their registry in the office of a notary, and the actual delivery of the thing sold.” Jlrl. 2242 is to nearly the same effect. It appears to us they were improperly received. Though the defendant has shown the property in dispute to be out ofYillaverde, he has not shown it to be in himself. We, therefore, reverse the judgment of the District Court, and order that the judgment be entered as one of non-suit, the defendant paying costs in this court, and the plaintiff the costs in the court below.