23 La. Ann. 426 | La. | 1871
This case is similar in many respects to that of same plaintiff against Mandell, lately decided in favor of defendants therein.
Tlie polition is framed apparently so as to include a suit for nullity of a judicial sale and a petitory action; but the plaintiff, in his brief, declares it is not a suit of nullity for reasons which he states, but is a petitory action asserting a superior title to tlie property in dispute to that of defendant. The plaintiff claims tlie property on the ground that the executory proceedings under which the Citizens’ Bank undertook to enforce its mortgage debt against tlie plaintiff and caused to be sold the property, which was purchased by defendant, Irwin, were absolutely null and void, for want of proper citation, and that tlie ■court was without jurisdiction.
In this view of the case, as a petitory action, it is not necessary to examine all the points made by plaintiff, for some of them, though they might exhibit irregularities which could be considered in an action instituted with proper parties to annul a judgment or a judicial sale, can not be examined collaterally by a petitory action against a purchaser, certainly a purchaser like the defendant, who seems to have been in perfect good faith and to have paid a second price which has g-one to discharge plaintiff’s debts.
First — lb is urged by plaintiff, appellant, that he was not an absentee in January, 1866, in such a sense as to authorize the appointment of ■an attorney or curator ad hoe to represent him in the executory proceedings.
. The evidence shows that he sold his home in this city and left for Europe in 1864; that a few weeks after an agent he had in New Orleans died ; that he remained abroad, year after year, unrepresented in Louisiana; and that in January, 1866, when the Citizens’ Bank ■desired to collect its debt, it was necessary and proper to appoint á representative for him. 19 An. 351; 21 An. .208.
Third — It is objected that notice equivalent to citation was not served on the plaintiff, Dixey, through the attorney appointed to represent liim. The record, and especially the return of the sheriff, shows that this point is made in error. The demand — or notice of order of seizure and sale — -was regularly served. This was the important act, which has been decided to be so far assimilated to citation as to interrupt prescription. 20 An. 192, and cases'there cited.
Fourth — The plaintiff contends that the property was never seized by the sheriff in the executory proceedings. The record shows a seizure according to the law applicable to the parish of Orleans. If there were irregularities they were relative merely.
It is urged that at the time of seizure the property was occupied by the military forces of the United States, and, therefore, no seizure could be made. Granting they did occupy at one time an office in one corner of the extensive premises, they permitted the seizure when first made; they did not and do not complain, and they gave up whatever possession they had some three months before the sale.
Fifth — It is contended that the notice of seizure of the property which was served on the attorney ad hoe was addressed to the plaintiff instead of to the attorney, and was, therefore, fatally defective. Granting that,a defect in this respect would constitute the salean absolute nullity, which is to say the least, doubtful, there was no defect in this case. The service was regular. 2 An. 158.
On the whole we find no error in the decision of the lower judge, and
It is therefore ordered that the judgment appealed from be affirmed, with costs.
Behearing refused.