2 Rob. 319 | La. | 1842
In April, 1836, Thomas Barrett, by a notarial act, sold to Gallier and one James Walsh a number of lots oi ground situated in the faubourg Livaudais, in the parish of Jefferson, on which was erected a steam saw mill and other improvements, and thirteen slaves, for the sum of $108,900, payable in five instalments, to wit: three notes amounting'to $19,260 on the 1st of May, 1837 ; four notes amounting to $20,520 on the 1st of May, 1838 ; five notes amounting to $21,780 on the 1st of May, 1839 ; six notes amounting to $23,040 on the 1st of May, 1840; and seven notes amounting to $24,300 on the 1st of May, 1841. Thirteen of these notes were drawn by Gallier and indorsed by Walsh, and twelve drawn by Walsh and indorsed by Gallier. To secure the payment of these notes a mortgage was retained on the lots, saw mill, and slaves.
-The Mechanics’ and Traders’ Bank of New Orleans became the holders of five of these notes, one due in May, 1838, for $5,100, and four others due May 1st, 1839, amounting altogether to $22,150, exclusive of interest and costs. In December, 1839, the Bank, for the purpose of coercing the payment of this sum, at the
After this sale, Gallier applied to the District Judge for an injunction to prevent the sheriff from putting Garcia in possession, or making him a deed of sale for the property. Gallier prays that the sale and adjudication may be annulled, and the sheriff ordered to make a deed to him, Gallier, in conformity to the adjudication made to him on the 29th February, 1840. The pleadings of the defendants do not materially vary this statement of facts. They ask for the annulling of the first adjudication, for a confirmation of the second, and to be put in possession, with damages.
Some time after the issuing of the injunction, Felix Garcia applied for a monition, which the plaintiff, Gallier, opposed, stating the facts herein recapitulated.
The case came on to be tried, when not a single holder of any one of the notes complained, or alleged that he was injured.
The inferior court, in its judgment, goes into the effect of the rule taken by Walsh on Gallier, the Bank, and the sheriff, ordering the property to be again sold at the risk of the purchaser, and pronounces it final and binding on the parties, declaring that it annuls the first adjudication to Gallier, not having been appealed from. The judge further- declares that the sheriff acted illegally in the second sale, in adjudicating the property to Felix Garcia at less than two-thirds of its appraised value, which was $75,000. He therefore annulled the adjudication, and perpetuated the injunction, declaring the adjudication to Gallier void. From which judgment Manuel, and Felix Garcia have appealed.
In this court Gallier has prayed for a correction of the judgment :
First. By declaring illegal and void the order or judgment of the 14th of July, 1840, on the rule taken by Walsh against Gallier, the Mechanics’ and Traders’ Bank, and the sheriff, which directed the properly to be sold a second time at the risk of Gallier.
Second. By amending that part of the judgment which directs the property to be again sold, as the sale of the 29th February, 1840, was legal, and adjudicated the property to the plaintiff.
Third. By decreeing the adjudication made by the sheriff on the 29th of February, 1840, to be a complete title in favor of the appellee, Gallier.
Many of the difficulties that now embarrass this cause arise from the terms used in the order of seizure and sale, which directed the sheriff to sell the property for cash to the amount of $61,560, with the interest due on the various instalments which
It is not questioned by any one that the adjudication to Gallier, made on the 29th of February, 1840, was legal, nor, if it had been complied with, that it would have entitled him to a deed. The
If the doctrine relative to sales a la folie enchere be applicable to sales made by sheriffs, the intervention of the court was entirely unnecessary, as the oificer had the right to judge whether the terms of the bid had been complied with, and if they had not been, to sell again; and the legality of his proceedings would be inquired into whenever a suit should be brought to recover the difference in the price between the first and second adjudications. But in this case the plaintiff avers, and we think correctly, that the pretended judgment on the rule is no bar to an investigation of the whole question, as it has not been signed, and has no force. The record shows that the judgment has not been signed, and it, therefore, stands as if it had not been given; at least, the irregularity is such as may be inquired into on the monition applied for by Felix Garcia; and as its effect, if it have any, will be to annul an adjudication made by a competent officer, it is as essential that it should be signed by the judge, as any other judgment which decrees the rescission of a sale.
We now come to the examination of the prayer of the plaintiff that the sheriff be ordered to make him a sale, in conformity with the adjudication of the 29th of February, 1840. If the plaintiff has complied with the bid which he made at that time, there is no question but that he is entitled to a conveyance.
The evidence shows that Gallier has fully satisfied the Mechanics’ and Traders’ Bank, the plaintiffs in the order of seizure and sale, for the sum for which it was taken out, and that Walsh, so far as the Bank is concerned, is discharged from all liability. The balance, then, for which a cash payment was to be made, was, according to the supplemental petition, less than $12,000,
As to the sale made on the 9th of September, 1840, we have no doubt that the District Court was correct in decreeing it illegal, and in annulling it. After a most deliberate examination of the question, we are of opinion that the doctrine relating to sales a la folie enchére, is not applicable to those made by a sheriff under writs issuing on final judgments. Article 2595 of the Code declares that judicial sales are subject to the same rules as other public sales, in all such things as are not contrary to the formalities expressly prescribed for such sales, and with the modifications made thereafter. When we turn to article 2589 of the Code, and observe the formalities required for selling property at the risk of the first bidder, we find them altogether different from the directions given to the sheriff by article 689 of the Code of Practice. Under the former article, if the price bid be not paid, no steps can be taken, until after the expiration of ten days, to have a second sale, and then the customary advertisements must be published ; but, under the latter, no such delays or formalities are necessary; the sheriff may, if the-price be not paid, where the sale is for
The impression that article 2589 of the Civil Code does not apply to sheriffs’ sales, is not a new one, as the decision in 4 La. 392, establishes.
But admitting that a second sale could have been made by the sheriff, at the risk of Galiier, still the adjudication to Felix Garcia would be null and void, as the sheriff sold the property for less than two-thirds of its appraised value. It has been repeatedly decided that the second sale must be on the same terms and conditions as the first; and this not having been the case in the present instance, we concur with the District Judge in his opinion that the second sale was a nullity. It was the interest of the creditors, as well as of the debtors, that the property should sell for as much as possible, and none of them having waived their legal right to have the property s61d on a credit of one year, if it did not bring two-thirds of its appraisement in cash, the sheriff had no right to change the terms.
The judgment of the District Court is, therefore, affirmed, so far as it annulls the adjudication of the property made to Felix Garcia, by the sheriff of the parish of Jefferson on the 9lh of September, 1840, and the injunction perpetuated which prohibits the sheriff from making a deed to said Garcia. And it is further or