Gibson v. Foster

| La. | May 15, 1847

Tho judgment of the court was pronounced by

Rost, J.

The plaintiffs, alleging themselves to bo the heirs of Simeon Gibson, have instituted this action to recover a tract of land from the defendants. Foster disclaimed title. 'Reese filed an answer containing a general denial, and an averment of title in himself. Mary Sargent and others intervened, claiming the land against both plaintiffs and defendants. The original parties filed a general denial to the petition of intervention. Mrs. Sargent, one of the .inter.venors, having died after issue joined, her executor, and the tutor of two minor heirs, came into court and adopted the petition of intervention. The plaintifls subsequently-filed the following plea: “ The plaintiffs plead the prescription of ten years against the estate of Jonathan 'Thompson, as against a vacant succession; and the prescription of five years against informalities in public sales; and prescription generally against the claim of-the intervener.” Tho .court of the first instancegave judgment in favor of tho plaintifls, and 'both the defendant and-the -intervenors appealed.

A-U the parties claim under Ebenezer Reese, the original grantee; fhe.defend•ant, Reese, -as -his son and heir, and the plaintiffs and intervenors, under a sherifl’s sale, made to J. Taylor, in 1812, at the suit of Seth Lewis v. Ebenezer Reese. It is admitted by the defendant Reese, that 'the sheriff’s deed was duly recorded in .the proper office, and that, after tho death of Taylor, his heirs convoyed the laud to Jonathan Thompson, by an act also duly recorded. The .capacity of the plaintiffs, of the defendant, Reese, and of the inter.venors, are .admitted. It is also admitted that none of the parties over were in actual possession of the land,.until tho defendant .entered ..upon it, .a few months prior to .tho institution of this suit.

I. The judgment in-the attacihmeut suit of Seth Lewis v. Ebenezer Reese was rendered by a court of compotent jurisdiction, contradictorily with the attorney .appointed to represent the absent debtor, .and after a reasonable timo had been allowed him to correspond with.his client and file his answer. Under the laws in force at the time, all errors and irregularities in the proceedings, short of a total want of citation, .could only be taken advantage of on a motion to dissolve the attachment, made in limine litis. After tho trial had begun, that motion was no longer entertained, and the irregularities were considered as cured. Watson et al. v. McAllister, 7 Mart. 368.

In the case of Cox v. White, 2 La. 422" court="La." date_filed="1831-05-15" href="https://app.midpage.ai/document/cox-v-white-7157510?utm_source=webapp" opinion_id="7157510">2 La. 422, the plaintiff contested .collaterally the ' validity of .an attachment, on the main ground taken in this case, to wit, the insufficiency of the service of the writ. Judge Mathews, in delivering the opinion of the ..court, said: “ Objections are made in the present case to the regularity and legality of the proceedings in the attachment, which, if it were by appeal, or in any other legal shape, now before the court, would perhaps be .entitled to great weight. The judgment .therein rendered must be considered as res judicata between .the parties, and as having settled all disputes between thorn in relation to the property attached, however irregular the proceeding may have been. All defects in the .commencement and prosecution of that suit, must be viewed as cured by the finaljudgment, in relation to all parties who had no complete and vested rights in the property attached, .at the time of rendering it.”

In cases of attachment, as in others, the settled jurisprudence of the State is that, all irregularities in the proceedings anterior to the judgment, except an entire want of citation, are to be corrected by some direct proceeding before the ,?auje .court to set' them aside, or by appeal; and that, their validity cannot be drawn into question collaterally. The absolute nullity contended for, as resulting from the interest of the judge in the event of the suit, was not recognised by the l.aws then in force. Under those laws, judges could be recused on the .oath of a party litigant, that he had miedo y sospecha of them ; and, unless the recusation was made, it was their duty, as it is ours, to proceed and decide. L. 22, tit. 4, Part 3.

It is contended that prohibitory laws have been disregarded, and that, by an express provision of the Civil Code, whatever is done in contravention of a prohibitory Jaw is void, although the nullity be n.ot formally directed, C. C. art. 12. This disposition was .extracted from the law 5, titje. 14, book 1st, of the Justinian Code; but the jurisprudence established under it, sanctioned also another rule which lias been incorporated in the jurisprudence of all countries ; it is the maxim, Multa fieri prohihentur, quce si facta fuerint ohtinent firmitatem, These two rules should be interpreted by each other; the first being intended for the maintenance of public order, and reasonable certainty in the muniments of titje, and tho second for the preservation of property and the rights of labor.

The first rule is considered by all commentators as applying to a veiy small number of cases, and not even to all cases invoking considerations of public order. We conceive that the same thing results, not only from the general tenor of our Codes, but from the very institution of property. Under the doctrino contended for at bar, the surest way to destroy priyate rights would be to ascend to their origin, and the institution of property would in effect be destroyed by the laws made for its preservation.

It is not however necessary to go farther into that enquiry in the present .case. We cannot go beyond the judgment; the laws alleged to have been disregarded in the proceedings subsequent to it were not prohibitory. They do not fall under the rule contended for; and where defects of form only are alleged, we disclaim all power to extend nullities to cases, neither expressly provided for by the lawgiver, nor coming within the legal intendment of art. 12 of the Code, as fixed by the jurisprudence of the country from which it is derived.

II. The only serious objection raised to the validity of the probate sale of the land in the succession of Jonathan Thompson is, that no attorney was appointed to represent the absent heirs, and that the decree ordering the sale was not rendered contradictorily with such an attorney, as is required by the act of 1817. The only proof adduced in support of this allegation is the declaration .of a subsequent judge of the same court, made at the trial in 1845, that he had searched the records, and had found no appointment of any attorney to represent the absent heirs of Jonathan Thompson preyious to the year 1831, and no citation issued, before the judgment ordering the sale of the property, to any one purporting to be attorney of absent heirs.^*

The ground taken by the intervenors goes to charge the curator and the court with a culpable neglect of duty, and it must be proved by them, though it involves a negative. 3 Mart. N. S. 576. 1 Greenleaf, Evid. nos. 19, 20, 21, 80.

Considering the time and the locality when and where these proceedings took place, the evidence alleged is not satisfactory, and would probably not be so in jn any case. It is well known that in the remote parishes of the State, for the want of suitable buildings and responsible keepers, proper care lias not been taken of judicial records; that many are entirely lost; and that those which remain are often in an incomplete and dilapidated state. Much the greater part of the real property of the State is held under probate or sheriff’s sales; and if the validity of the titles thus acquired during the last forty years was to be tested by the judicial records as they might exist at any subsequent epoch, time, instead of healing, as it should, the defects of those titles, would gradually weaken, and eventually destroy, them.

The presumption of omnia rile acta, which attaches to judicial proceedings, is not to be rebutted by the remote presumption resulting from tho evidence adduced in this case. The defendant was not the keeper of the records, and is not bound to account for their loss. There may well btwe been a curator of absent heirs before 1831, as there was one after that time, and he may have waived the formality of citation. The decree ordering the sale was rendered by a court of competent jurisdiction. We are bound to believe, against mere probabilities, that the judge did his duty, and to presume, at this late period of tima, that all the parties interested had notice of the proceedings. 1 Greenleaf, Evid.no. 19.

But if jt were true that no attorney had been appointed to represent the absent heirs when the decree ordering the sale was made, that decree would not be ,an absolute nullity by reason of the omission. The .curator was the representative of the succession, and had tho capacity to proyoke the sale of its property. The act of 1817, making it his duty to prove, contradictorily with the attorney of absent heirs, that the sale was advantageous or necessary, is merely directory; it contains no prohibitory clause; and although its non-observance might, in certain cases, subject the curator to damages .at tho suit of the absent heirs, it constitutes one of those informalities anterior to the judgment which ¡cannot he inquired into collaterally.

There is no error in the judgment appealed from.

Judgment affirmed.

* Tho order for the sale was made on tho 21st January, 1825, and the sale lo.ok place on tho 22d of February following.