M. & B. Mullen & Co. v. Amas

7 La. Ann. 71 | La. | 1852

The judgment of the court was pronounced by

Sumil, J.

Under a fieri facias issued against Amas and Roe-, the defendants in this cause, certain lands were seized as their property. A. R. Hynes became the purchaser at sheriff’s sale, at the price of $3,800, and directed the sheriff to credit his bid upon the fieri facias. Afterwards, Hynes took a rule upon M. and B. Mullen Co., to show cause why his bid should not be credited as cash upon the execution, and why he should not be decreed to be subrogated to all the rights accruing under said judgment. These pretensions of Hynes, rest upon an alleged sale, made at auction, to one Devereux, in the insolvent proceedings of Kervan, a member of the firm of IkT. and B. Mullen Co„ which was composed of three partners. The defendants in the rule, resist the application of Hynes, alleging, in their answer, that the claim, when purchased by Hynes, was a litigious right, which, he being an attorney at law, was incapable of purchasing ; that any apparent interest held by Devereux, was held by him as a trustee, for the benefit of their firm; and that Devereux was induced to sell Hynes the judgment, by his representation, as to its value.

The district judge considered the purchase by Hynes void, upon the ground, that it was the purchase of a litigious right by an attorney at law, there being an appeal by Amas and Roe, pending at the time. His decree annulled the sale, and directed that the five hundred dollars, the price paid by Hynes to Devereux, be credited on the bid made by Hynes, at the sheriff’s sale. Hynes has appealed.

Considering the nature of the claims sold, the possession of the purchaser, who was also attorney of record for Amas and Roe, and his representations as to the value of the claim, as testified by Devereux, we are of opinion that the appellant is not entitled to a reversal of the judgment. See Copley v. Lambeth, 1st Ann. 317. C. C. 2422, 2624, 1841.

ft js said, that in consequenee of the previous insolvency of Kenan, M. and B. Mullen Sf Co. were incompetent to bring suit against Amas and Roe, and stand in judgment. We are by no means prepared to say, that Amas and Roe could now make any such objection to the judgment. But, atany rate, the alleged irregularities do not concern the plaintiff in this rule. As an actor, he must rely on the strength of his own title, and not on the weakness of his adversaries. Moreover, in asking a subrogation, he has affirmed the judgment. So, also, the appellant is not competent to raise questions in this proceeding, which concern the creditors of M. and B. Mullen Sf Co. That their interests have been disregarded and violated by the defendants in rule, there is strong reason to believe. But those creditors, if suoh be the case, will have an equitable right to claim the benefit of this large judgment against Amas and Roe, as an asset of their debtors ; while, on the contrary, the success of the appellant would be hostile to their interests. The decree of the district judge has reached the justice of the case, so far as it was in his power to do so under the rule; and it is therefore affirmed, the appellant to pay the costs of the appeal.