6 Rob. 230 | La. | 1843
The plaintiff represents, that he is the owner of a certain debt which was originally due by one Dougal M’Call, to the vacant succession of Jesse Harper, deceased, that the debt is evidenced by three promissory notes made payable by M’Call, to the order of David Stanbrough, curator of the said vacant estate ; and that said three notes are secured by a mortgage on a certain tract of land in the parish of Madison. He further states, that he
The defendant first pleaded the general issue; denied specially, that the plaintiff has any right to the note alluded to in his petition ; denied also, that said note was ever legally seized, or levied on, or sold by the United States’ Marshal; and averred, that he himself was the rightful owner of said note ; that the sale made by the Marshal was null and void, because the forms of law were not observed by said Marshal in making the sale; that there was no legal seizure, no legal appraisement, and no advertisement; that said sale was illegal and fraudulent upon its face, and is an absolute nullity; and finally, that succession property in this State, in due course of administration, in the Probate Courts of Louisiana, cannot be legally subjected to any writ of execution from the federal courts, and that a sale thereof conveyed no rights to the plaintiff. He prayed, that the plaintiff’s claim might be rejected, and the injunction be dissolved with damages, &c.
The court, a qua, rendered judgment in favor of the defendant, dissolved the injunction, and condemned the plaintiff, and his
The evidence establishes the following facts : A judgment was rendered in the United States Court, Ninth Circuit, Eastern District of Louisiana, in the suit of The Farmers Bank of Virginia v. David Stanbrough, curator of the estate of Jesse Harper, deceased, for Upwards of $12,000; the Marshal proceeded to'execute said judgment against the curator, whereupon the curator obtained a writ of injunction from the Court of Probates to arrest the sale, which injunction was dissolved, on the grounds of usurpation, and assumed authority by the said Court of Probates. The Marshal then proceeded to seize all the rights and title of the curator to three promissory notes secured by special mortgage, then in his hands, and notified him of the seizure. The sale was advertised, but the notes were not appraised ; and the three notes were adjudicated by the Marshal to the plaintiff in this cause, for the sum of $3500 cash. The aggregate amount of the notes is $11,438 66< After the sale of the notes, the first due of the same, was endorsed over and transferred by the curator to Josiah Stanbrough, who obtained an order of seizure and sale thereon; whereupon, the present suit was instituted, and the injunction sued out.
It is further admitted in the record* that the plaintiff is a creditor of Jesse Harper’s estate and that* for ten years at least, said succession has been insolvent * that David Stanbrough is, and has been the curator of said estate ever since the first of January, 1840 ; that an inventory of said estate was taken by the Probate Court; that a sale of the property took place* and that the notes in dispute are the proceeds of the sale ;• and that all the proceedings took place by order of the Probate Court. It is also admitted, that the notes sold by the Marshal never came into his corporeal possession, &c. .
There is no evidence that the note in question did not come fairly into the possession of the defendant. The note is endorsed by the curator, and it appears to have been so endorsed* previous to its being protested for non-payment.
This case presents a question very similar, in its nature and effect, to the one which we had under our consideration in
Here, the property seized was already in the hands of the Probate Court: it was in the possession of the curator as an officer appointed by that court; this officer was bound to dispose of it under the supervision and control of the Probate Court, and to divide its proceeds between the creditors according to their rank; and if it could be for a moment admitted, that the proceeding complained of by the defendant was within the powers and authority of the federal court, it would have the effect of destroying
We must hold again, as we did in the two cases above alluded to, that the property of the succession of Jesse Harper, could not be seized by the Marshal of the United States, and that the sale thereof made by him to the plaintiff, under the execution issued against the curator of the said vacant and insolvent estate, is a mere nullity.
It is, therefore, ordered, that the judgment of the District Court be affirmed with costs ; without prejudice to the right which the plaintiff may have to claim and recover of the estate of Jesse Harper, whatever amount he may have paid to the Marshal as the price of his purchase for the benefit of the succession.