Duncan v. Armant

| La. | Jan 15, 1848

The judgment of tlie court was pronounced by

Rost, J.

The plaiutiff claims from the defendant, as damages, the difference between the price at which two slaves belonging to the succession of Lanna were adjudged to him, and the price which they brought at a sale a la folie enchére, after he refused to comply with the terms of the sale, and was duly put in default. The defendant resists the demand upon three grounds: 1st. That no order of the Probate Court was obtained for the resale of the slaves, which being succession property, could not be sold, unless the executor was expressly authorized by the court. 2d. That the proceeding a la folie enchére cannot be pursued within an unlimited or an arbitrary undetermined period, but should be begun within ten days. 3d. That the second sale did not take place after the customary legal advertizements. The District Court sustained the last ground of defence, and the plaintiff has appealed from the judgment rendered against him.

The answer of the plaintiff to the first ground appears to us conclusive. The authorization to sell having once been obtained, it was his duty, as executor, to go through all the proceedings necessary to the completion of the sale, and the coercive measures established by law for enforcing the payment of the price are left to his discretion. If he errs, he is liable in damages; but the legislature did not intend that, in every case .of this kind, the expensive formalities which preceed the sale of succession property should be renewed; and the rule contended for cannot be fairly deduced from the decision in the case of Landry v. Connelly, 4 Rob. 132, cited at bar. The court in.determining on the rule taken in that case that the Court of Probates was competent to order the resale, was not called upon to determine whether the order was necessary. We do not think it is. The resale of succession property is properly made under the first order. But if the heirs are minor's it cannot bo made below the price of appraisement.

The case of Stewart v. Paulding, 7 La. 506" court="La." date_filed="1844-05-15" href="https://app.midpage.ai/document/citizens-bank-v-buisson-7158835?utm_source=webapp" opinion_id="7158835">7 La. 506, appears to us decisive as to the other questions raised. Under a fair intendment of art. 2589 of the Civil Code, we consider, as the court appear to have done in that case, that the second sale need not be advertized during more than ten days, provided that the customary notices be given .during that .time. This term of ten days, fixed by the Code, refers exclusively to the duration of the advertizement, and not to the period at which it is to commence. If some delay occurred in this case between the first and the second sale, no negligence can be charged to the plaintiff. A few days after the sale, he took a rule upon the defendant to show cause why he should not comply with the terms and conditions of the sale, and why a writ of distringas should not issue to compel him thereto. On the trial of the rule, the defendant showed no .cause, the rule was made absolute, and a writ of distringas was issued. When the writ was returned no property found, the plaintiff advertized the slaves to be sold at .the risk of the defendant, It is true they were advertized for thirty-two days, when they might have been sold .at the expiration of ten days; but this is not a cause of nullity. The law clearly means ten days or mor.e. The sale was made in good faith. The advertizements were sufficient, and no injury is shown to have resulted to the defendant from the delay.

The plaintiff is entitled to recover $480. The costs claimed by him cannot be allowed in the present action.

It is ordered that the judgment be reversed, and that there be judgment in favor of the succession of Jean Lcmna against the .defendant for $480, with costs in both courts.