36 La. Ann. 134 | La. | 1884
Lead Opinion
The opinion of the Court was delivered by
Luc Dobard had executions issued upon several judgments, obtained against tlie defendant Bayhi, which were levied upon
When the opposition came on for trial, the plaintiff answered that no title had been made to him, the adjudication had not been perfected, and no proceeds of the sale had been paid to the sheriff, and there was nothing therefore out of which to pay anyone. This was followed by a supplemental answer alleging that “the seizure was abandoned through the sheriff,” and that no satisfaction of the judgments had been entered on the docket, and none made, and that the judgment of the Supreme Court on a rule to cancel mortgages left the plaintiff in the same position he has always been in, with his judgments unexe-cuted.
How such pretensions can be set up by the party who provoked these judicial proceedings is beyond comprehension. The plaintiff provoked the sale and bid in the property, and did not p>ay his bid in cash, doubtless because he was the judgment creditor, awaiting the trial of this opposition before paying. The attempt to foil the third opponent by pleading that no money was paid on the bid, when the pleader is the man who should have paid it, and no title had been made, when he is the person who alone can demand it shall be made, is to trifle with the process of the law.
The plaintiff, in the partition suit in the record, set up his purchase as adjudicatee and purchaser at the sale above mentioned, and claimed that he was owner of the property thus bought, and prayed that he be subrogated to all the lights of his debtor, and the court so ordered. If there is anything to break the force of this judicial assertion of ownership, and judicial decree maintaining it, we have not seen it. The sole source of the ownership is the sale provoked by the plaintiff, and the adjudication thereunder. That adjudication is his title. If he had been the first mortgage or judgment creditor for an amount sufficient to consume the bid, there would have been no need to pay any cash. With a competing creditor claiming priority of payment, and an order of court for service of his process, and service made, the detention of the bid, or so much thereof as was ordered in the hands of the sheriff was the proper thing to be done. That is what was done, except that the sheriff permitted the bidder to keep it.
This transcript can be read only with difficulty. The transcripts that have lately come up from the court for Placpiemines parish are written with an ink that is scarcely visible. In future, transcripts that are thus written will be returned to the clerk of the Plaquemines court with directions to rewrite them legibly, and this will be done at his expense. No fees will be allowed for the rewriting'.
It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that the third opponents have and recover of the sheriff O. V. Thibaut and the plaintiff Luc Dobard in solido the sum of sixteen hundred and twenty-five dollars with interest as set forth in their judgment, and the costs of both courts.
Rehearing
On ArPLioATiON fok Rehearinc.
The sheriff charges error in the judgment which condemns him to pay to the. third opponents part of the amount of the adjudication to plaintiff of defendant’s interest or share in the successions of his father and mother.
The complaint is indicated on the theory that, as that interest or share did not, in the partition suit, subsequently realize the amount of the bid, he cannot be held. Such defense cannot, avail. That which the plaintiff bought was the hope that the interest or share of defendant in the succession would realize something to satisfy his judgments, in whole or in part.
It is immaterial whether such interest realized anything afterwards. The purchase may well be assimilated to that of the fisher who sells
The plaintiff thought that he had bought the interest in question, for he subsequently, in the partition proceedings, was recognized as the transferee of it in place of the defendant, who was there a co-parti-tioner.
Had that, interest realized more than enough to pay the opponents and the. plaintiff, the surplus would have enured exclusively to the latter. He took his chances and cannot complain now that his expectations have been frustrated.
There can be no doubt as to his liability to the third opponents, for he has retained their money, has it and must pay it over to them. With this conclusion he must have felt satisfied, for he has not even asked for a rehearing.
The sheriff has no reason to complain, for the loss is the result of his own dereliction.
Whatever the law be noth regard to the rights to purchasers of real estate at judicial sales .to retain out of the price of adjudication an amount sufficient to satisfy claims, however secured, whether by privilege, special or other mortgage, provided registered previously, it cannot surely apply to cases in which the creditors of such claims intervene by third opposition filed before the sale, asking that the sheriff be ordered to retain the proceeds of sale and where the order of court is made and is notified to the sheriff likewise, before the sale. 1 A. 365; 28 A. 563; 34 A. 58,1.
By reason of such opposition and order thus served, it surely becomes the duty of the sheriff to require from the adjudicatee payment of the price, at least for an amount sufficient to pay the claims of the opponents when allowed. Where the adjudicatee fails to pay, the sheriff should resell on the- spot.
If he does not require payment, but allows the adjudicatee to retain, theu he makes the latter his agent and remains just as liable as if he had actually received the amount.
It is a significant feature in this controversy that the interest seized and sold is the only property owned by the defendant at the time. C. P. 301, 403.
It. is clear that, if the plaintiff and adjudicatee had paid to the sheriff' an amount sufficient to pay what remains due to the third opponents on their judgment, that officer would have had that amount in hand
In the present instance it appears that tlie opposition was filed, that the Older to retain was made and that service of both was acknowledged on the day of sale. In the absence of plea or'proof to the contrary, the Court will ])resume that all this was done before the sale, therefore- fully in time.
Under such circumstances the sheriff is clearly liable and should be held accordingly.
Rehearing refused.