1 La. Ann. 297 | La. | 1846
In this case the opinion of the court was delivered at the last term, at Alexandria, by
The syndic sues for a tract of land as the property of his insolvent, which he alleges was illegally sold at a pretended sheriff’s sale to one Bowman, and since transferred by him, and which has come into the possession of the defendant. He alleges that the sale has already been declared null and void as to Bowman. See Lawrence, Syndic, v. Bowman, 6 Rob. 21. The defendant sets up his title, and calls in his warrantors. His title rests upon the sheriff’s sale; and the question is, whether the original owner was divested of title by the proceedings in that, case, as against the present defendant, a purchaser without notice. The whole matter in controversy is brought to our notice by a bill of exceptions in the record, taken to an opinion pronounced by the district judge. The question was submitted to him, whether the plaintiff, as syn-dic, could go behind the sheriff’s deed and return, and show that, in fact, the requisites of the law had not been complied with, though the defendants were innocent purchasers, for a sound price, without notice, and previous to any suit for the cancelling of the sale. The court ruled that the plaintiff might introduce evidence to that effect, drawing a distinction between conventional and judicial sales, that in the latter even an innocent purchaser must see that all the forms of law are actually fulfilled, and cannot rely on titles apparently regular.
■ This view of the law appears to us to be sound and correct. No forced alienation is valid, and divests the title of the defendant in execution, unless the forms of law have been complied with. It is true that he who exhibits a judgment, execution, and sheriff’s deed, makes outa primd facie title ; but if the regularity of the proceedings be contested, and it be shown that the forms of law were not complied^with, the purchaser acquired no title, and could confer none upon his vendee. If the defendant in this case had sued out a monition, and the homo-logation of the sale had been opposed, on the grounds of nullities in the proceedings which preceded the forced sale, it is clear the sale would have been annulled. It is by a compliance with legal forms that the consent of the owner to the sale by the sheriff is supplied, and without such forms the sheriff has no warrant to sell. The evidence before the court below, and now before us in the two cases by consent of parties, shows that there was no valid sale, and justifies the judgment rendered by the court below. The judgment of the District Court is therefore affirmed with costs.
A rehearing having been allowed in this case on the question, whether the irregularities in the sheriff’s sale were cured by the agreement of the judgment debtor, the opinion of the court was pronounced, at the present term, by
This case has been decided in part by the late Supreme Court, and the only question presented to us on the rehearing is, whether the irregularities in a sheriff’s sale may not be waived by the judgment debtor. The rule laid down on that subject in the 11th article of the Louisiana Code, is clear and free from ambiguity. “Individuals may renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to public order or good morals.” The judgment debtor in this case
The nature of the deed by which the present defendant acquired the land, would go far to satisfy us that he had notice of the defects of the title; but whether he had, or not, the nullity of the sheriff’s sale must be fatal to him.
Judgment affirmed.
