Davis v. Martin

113 F. 6 | 5th Cir. | 1902

PARDEE, Circuit Judge

(after stating tbe facts as above). As there was an actual, physical seizure and custody of the property in controversy in the suit of Watkins et al. against Wooten, in the circuit court, that court had jurisdiction to hear and determine the, controversy inaugurated by the petition filed-by appellant and the proceedings thereunder, irrespective of the citizenship of the parties. Morgan’s L. & T. Ry. v. Texas Cent. R. Co., 137 U. S. 171:, 11 Sup. Ct. 61, 34 L. Ed. 625, and cases there cited. The record shows that the proceedings on the appellant’s petition have been carried on and conducted under the liberal rules of procedure as laid down in the Louisiana Code of Practice, and in total disregard of the equity rules which control equitable proceedings in the courts of the United States. Although this has been done without objection in the ciicuit court, and with the apparent sanction of the judge, and no errors are assigned thereon in this court, it is with hesitation we deal with the case 011 the merits, and as if the proceedings were in all respects regular.

The case shows that tbe succession of W. L. Wooten was regularly opened in the district court of Caldwell parish, and that thereon proceedings were had that resulted in a sale and transfer of the property in question to pay debts. According to the laws of Louisiana, as expounded by the supreme court of the state, it is well settled that such a sale, when perfected, has the effect of extinguishing mortgages given by the deceased upon the property, leaving the mortgage creditors to look to proceeds in the hands of the administrator. Lafon’s Ex’rs v. Phillips, 2 Mart. N. S. 231; De Ende v. Moore, Id. 336; Joyce v. Poydras de la Lande, 6 La. 283; Hoey v. Cunningham, 14 La. 86; French v. Prieur, 6 Rob. 299; Leverich v. Same, 8 Rob. 97; Lewis v. Labauve, 13 La. Ann. 382; and see Succession of Thompson, 42 La. Ann. 122, 7 South. 477.

The alleged answers in this case deny the validity of the sale made under the authority of the district court of Caldwell parish jn the succession of W. L. Wooten, on the ground that said Wooten, at the time of his death, resided and had his domicile in the city of New Orleans, parish of Orleans, state of Louisiana, and not in the parish of Caldwell, of said state. If we understand the law of Louisiana, only the probate court of the parish of the domicile of the deceased has jurisdiction to open the succession and conduct succession proceedings, and if, in fact, at the time of his death, the said Wooten was a citizen of the city of New Orleans, parish of Orleans, the district court of Caldwell parish was without jurisdiction, and i'ts judgment and proceeding's were nullities. But we fail to find in the evidence any proof whatever that the said Wooten at the time of his death was a citizen of the city of New Orleans, parish of Orleans, but find abundant evidence to the effect that at the time of granting and acknowledging the mortgage to Henry Dickinson said Wooten was a citizen of Caldwell parish. The amended answer alleges that the sale by the sheriff, under the orders of the district court of. Caldwell parish, was a simulation and a sham, and had no legal and real existence; that the recitals in appellant’s deed are false; that the sheriff of Caldwell parish did not sell said land to the plaintiff or any one else, and never offered the same for sale under any writ.

Assuming that this is a sufficient averment that the sale by the sheriff of Caldwell parish, under the alleged order of the district court of Caldwell parish, was a nullity, still we fail to find any evidence whatever in the record showing, or even tending to show, that the proceedings were not valid and regular. Certainly Wooten was dead, his last domicile as far as the record goes was in Caldwell parish, and apparently the district court of Caldwell parish was seized of jurisdiction, and it unquestionably issued the order of sale under which the sheriff acted. It is a well-settled rule in Louisiana that in a matter of judicial sales a purchaser need not look beyond the jurisdiction of the court and the sufficiency of the order to warrant the sale. Webb v. Keller, 39 La. Ann. 55, 67, 1 South. 423, 431, and cases there cited.

Several objections are made in the brief of the learned counsel for appellee, which we consider in order:

(1) It is contended that the sheriff’s deed is invalid because the decree directing the sale of succession property should be according to law, and that according to law succession property cannot be sold, unless within 12 months preceding it has been duly appraised, and that according to the deed executed by the sheriff to the appellant, the sheriff made an appraisement of the property instead of having the property appraised in the succession proceedings. The record apparently shows that the sale took place more than a year after the appraisement made bjr the experts appointed by the judge. Counsel cites Webb v. Keller, supra, to the effect that it was the duty of the judge to cause the property to be estimated by experts before proceeding to the sale thereof, if it was such property as had remained unsold for more than one year after the appointment of the executrix or administrators; and cites Elliott v. Labarre, 2 La. 328, to the effect that if the forms of law be omitted a succession sale will be annulled. Conceding all this to be as counsel claims, we are of opinion that the irregularity suggested was a relative nullity, and whatever its value may be in a suit to annul the sale brought in the district court of Caldwell parish it is insufficient here to affect appellant’s title.

(2) It is further contended that the deed does not show a sheriff’s sale because it is signed by the sheriff and two witnesses, and is not signed by the purchaser, and therefore is not an authentic act, but a mere private act. The sheriffs deed, as evidence of title, seems to have been proved and presented in evidence without any question, and we find no motion to suppress the same, either in the court below or in this court.

(3) It is further complained that the sheriff’s deed was not recorded at the time of the issuance and execution of the writ in the main case of Watkins et al. against Wooten, and the marshal, therefore, had the right to seize. The certificate shows that the deed was deposited for record in the proper parish on July 21, 1897, about a mouth prior to the actual seizure made in this case. We understand the law of Louisiana to be that a record of a conveyance of lands takes effect against' third persons from the date of deposit and filing by the proper officer of the deed or other instrument, and that the time the officer actually spreads the conveyance on the records is immaterial as affecting the rights of parties. Payne v. Pavey, 29 La. Ann. 116; State v. Rojillio, 30 La. Ann. 883; Way v. Levy, 41 La. Ann. 454, 6 South. 661.

Counsel for appellees calls the attention of the court to alleged suspicious facts appearing on the face of the evidence, to wit:

“The deed, a copy of which is in evidence, recites: ‘Before me, M. B. Micom, clerk 4th district court and ex officio recorder and notary public, came and appeared ,T. J. Meredith, sheriff,’ etc. But the clerk does not sign the deed. The deed is dated December 31, 1894. It was not offered for record for more than two years. It is signed ‘Jack 3. Meredith, Sheriff,’ and .T. .1. Meredith is one of the two witnesses to his own signature. The tax receipts offered in evidence show that the land was not assessed to complainant, bnt was assessed to W. L. Wooten during the years 1895, 1896, and 1897, and paid to this same sheriff, Jack J. Meredith, by the mortgagees, Watkins and others.”

Under the law of Louisiana, it was not necessary for the clerk to sign the sheriff’s deed. The statute makes the sheriff’s deed authentic when signed by him. See Code Prac. La. arts. 692-698. The deed was recorded before the seizure in the suit of Watkins v. Wooten. And in this connection we may notice the fact that, as the mortgage debt on which appellees brought executory process was long past due, the appellees were not very diligent themselves. The transcript shows that the sheriff’s deed is signed by Jack J. Meredith, sheriff, and witnessed by C. M. Jarrell and I. I. Meredith. The tax receipts show that the land was assessed during 1896 and 1897 to W. L. Wooten, but do not show that the same land was not assessed to appellant.

On the record and case as made before the lower court, we are dear that the appellant shows a sufficient title to the land in controversy, and that by the sale made under the decrees of the district court of Caldwell parish the said land has been divested of any lien arising under thg mortgage which is the basis of the seizure and sale in the main suit, and we are clear that on the record and evidence as submitted the appellant was entitled to a decree in his favor.

The cause will be remanded to the circuit court, with directions to enter a decree in favor of the petitioner, granting a perpetual injunction against the marshal and the complainants in the suit of Watkins et al. against Wooten et al., forbidding and enjoining them from further proceedings to subject the property described in the plaintiff’s petition to the mortgage granted by W. R. Wooten in his lifetime to Henry Dickinson, which mortgage is fully set forth in the record, and to further decree the release of the seizure of said property and the restitution of the same.