1 Rob. 378 | La. | 1842
The petitioners seek to recover a tract of land, adjudicated to their father, Robert Thompson, at a sheriff’s sale, made at his own suit, as a judgment creditor of one André Can-dolle. The material facts of the case, as disclosed by the record, are, that on the 1st of August, 1832, Antoine Barras and André Candolle made their promissory note for $2130, by which they hound themselves jointly and severally to pay said sum in all the month of March, 1823, to the order of one Louis Riché, by whom it was endorsed over to Thompson, before the maturity of this obligation, on the 21st of October, 1822. The community which had
Under this state of facts, it is contended on the part of the defendant and appellee, that under article 684 of the Code of Practice, and the settled jurisprudence of this court, no adjudication could be, or was in fact made to Thompson on the 17th of April, 1826, because no bid was offered to the amount of the special mortgage in favor of the heirs of Anne Le Gros, existing on the land by virtue ,of the adjudication made to Candolle of the community property, and under the judgment reducing such mortgage to $26,153 75. Civ. Code, art. 338. 3 Martin, N. S.; 604. 4 Ib., 162.
On the part of the appellant, it is urged:
1. That admitting the plaintiffs’ title to be illegal and defective,
2. That.the pretended special mortgage which is said to have existed and to have prevented the sale, was a mortgage of less dignity than the lien of the plaintiff in execuiion, his claim being one against the community which had existed between Candolle and his deceased wife, while this mortgage was for a claim of the heirs of the wife for her half of the community property, which could only have effect, after the debts of the community were paid out of the property, that being the common pledge of all the creditors of the community.
3. That prescription has cured the nullities or defects of the title of the petitioners, if any ever existed.
4. That if the sale to Thompson be set aside as null, his judicial mortgage which has since lain in abeyance should be declared to be reinstated, and the property sold to satisfy the same.
T. The rule is that in a petitory action the plaintiff is bound to show title in himself; this, we apprehend, means that he must show a good and legal one. If that which he exhibits is defective, and contains absolute nullities, apparent on the face of it, the defendant in possession can surely avail himself of such nullities. So long as he is left undisturbed, he has no interest in bringing an action to annul a title which may never be set up or opposed to him, but whenever, under such adverse title, he is sought to be evicted, he can urge against it, by way of exception, any thing that he could plead in a direct action of nullity.
II. Were this a controversy between the heirs of Candolle’s wife, and the petitioners, as creditors of the community, to render the community property subject to their claim before its partition or adjudication, under art. 338 of the Civil Code, it would wear a very different aspect from that which it presents when a third party is concerned; In Lawson et ux. v. Ripley, 17 La. 238, we have said, that the wife, or her representatives, although their distinct interest in the community attaches at the dissolution of the marriage, subject to their right to renounce and be exonerated from the payment of the community debts, have nothing to claim out of the acquets et gains, until such debts are paid. It seems to us extremely improbable that the code ever contemplated that the
III. As to the plea of prescription against the nullities which may exist in the title on which the plaintiffs claim. Admitting that the nullity which is shown to exi.st in this title could be cured by prescription, of which we entertain strong doubts, it appears to us that it cannot avail a party not in possession. The defendant on the contrary, being the possessor, no prescription can bar his right to contest the validity of the sheriff’s sale,'under which the plaintiffs claim.
IV. We cannot decree the reinstatement of Thompson’s judicial mortgage on the property in dispute, on the very ground which induced us to consider his title as a nullity, to wit, the existence of the special mortgage of $26,153. When the property was sold at the suit of Candolle’s children, and bought by Menard for a sum less than the amount of their mortgage, all subsequent mortgages fell to the ground, and the sheriff was authorized to release them. Code Prac. 708.
Judgment affirmed.