Fox v. Tio

1 La. Ann. 334 | La. | 1846

The judgment of the court was pronounced by

Slidell, J.

Macarty had obtained an order of seizure and sale against Isabella Fox, and the property seized was adjudicated at twelve months’ credit to her. She neglected to furnish bond and security, and, after the twelve months had expired, Macarty took a rule upon her, to show cause why the property should not be sold for cash and without appraisement, suggesting as the grounds of the motion, the adjudication and her neglect to furnish bond. To this summary form of proceeding by rule she made no exception; but filed an answer to the rule, not denying generally Macarty’s right to relief, but alleging specially as causes why Macarty should not maintain the rule, that she had attempted, since the adjudication, to effect a sale at public auction of the properly, and was prevented by Macarty’s interference, and that there was an outstanding claim of title in Poultney’s heirs, which was calculated to affect the value of the property and prevent a fair sale. At the trial of this rule the default of Fox to furnish a twelve months bond with surety, was admitted; and the court refused to hear evidence on the subject of the alleged interference, the plea itself exhibiting no legal defence, and considered the matter of an outstanding adverse title as already disposed of by anterior proceedings in the cause. Macarty’s rule was made absolute, no appeal was taken, the sheriff proceeded to a resale of the property for cash and without appraisement, and Macarty’s executor became the purchaser. Fox then brought the present'suit, the object of which is to have the adjudication of the land to Macarty’s executor, decreed to be null and void. Two points are presented by the plaintiff:

I. That the order directing the resale was such a judgment as required the signature of the judge ; that it not having been signed, its execution was illegal. The relief prayed by this rule was incidental to the execution of the final judgment, to wit, the decree of seizure and sale. Upon the execution of that decree, Fox, becoming herself the purchaser, made default by not giving bond and security; and the plaintiff, by his rule, asked the court to place him in the same position, in the further execution of his judgment, that ho would have occupied, if Fox had fulfilled her duty, and given him a twelve months bond. To the form of proceeding thus adopted the defaulting purchaser made no objection ; the trial was conducted in the ordinary mode of trying rules; and the decree upon it was a decree incidental and auxiliary to the execution of the final judgment theretofore rendered. As such, though unsigned, it could be executed, or be made the subject of appeal. As to what judgments require signature, and what do not, there is perhaps some obscurity in our Code of Practice; but, taking into view the circumstances of this ease, and also the mode in which the rule was tried, without objection by the defendant in the rule, we deem the point untenable. The order being appealable, and no appeal having been taken, we are not permitted to inquire into the alleged errors of the order making Macarty’s rule absolute.

II. It is contended that the sale was void, because not properly advertised. One advertisement was posted at the parish court-house door, in the town of Lafayette ; one at the Exchange Hotel, the most public and frequented hotel in Lafayette, and the usual place for making judicial sales; and one at a coffeehouse in the village of Gretna. The point made by the plaintiff is, that three different places in the parish should have been selected; that it was illegal to put up two of the notices in the same place, to wit, the city of Lafayette. She relies on the case of Pumphrey v. Delahoussaye, 9 Rob. 42. The act of April 6, 1843, sect. 1, dispensed with newspaper publications in certain parishes and under certain circumstances, declaring that a publication of such sale, affixed at the court-house door and at two other public places in the parish, {deux autres lieux publics de la paroisse,) shall be sufficient. If instead of the expression “two other public places in the parish,” the language had been two other places in the parish, the point would have been plausible. But as it stands, we cannot say that the law has been disobeyed. The court-house door was one “ public place,” expressly designated ; the Exchange Hotel was another “ public place in the parish,” and, in point of fact, as the evidence establishes, the place of greatest resort in the whole parish. Muche’s coffee house at Gretna, was another “ public place in the parish.” The testimony shows that this building forms a corner at the ferry landing; that many planters cross there ; and, in short, that to all the public places, where the notices were posted, the people of the parish resort. The law, we think, has been fairly observed.

It is therefore decreed that the judgment of the District Court be reversed; and it is further decreed that, there be judgment in favor of the defendant, that he be quieted in the possession and ownership of the property in the petition described, and that the plaintiff pay the costs in both courts.