41 La. Ann. 1126 | La. | 1889
The opinion of the court was delivered by
This case was before us at Opelousas in July, 1888. Vide 40th Annual at page 690 et sequentes. Therein a full and explicit statement of the pleadings was given and it need not he repeated here. It will suffice, for all present purposes, to restate a few leading facts as pertinent to a trial on the merits.
This is a petitory action in the ordinary form, in which Mrs. McCall, as plaintiff, sets up a title in herself, to an undivided one-half interest in the Beverly or Sans Souei plantation, in the Parish of Avoyelles, by inheritance, she claiming as the only sister, and sole heir-at-law of John G. Wilson, deceased, who acquired same by purchase of Sarah Ogden, wife of James A. Kinhead — the other undivided one-half belonging to Euplirosine Ogden, wife of M. P. Vernon — the entire tract containing about 1900 acres.
The defendant, Miller, claims ownership of one-lialf of the Wilson one-lialf interest — i. e. in one-fourtli of the whole — by purchase from the Cliaffes, whom he calls as Ms warrantors; and they claim under an execution sale against Mrs. Elizabeth McMatli, in foreclosure of a conventional mortgage executed by her; she having acquired title under execution sale in satisfaction of a judgment in a suit entitled George B. King, executor, vs. J. G. Wilson, for $18,600, same being the balance due by the defendant on execution, on the original purchase infice of the property in question.
The defendant, Irion, claims ownership of the other one-lialf of the Wilson one-half interest, by purchase from Henry M. Payne, whom he calls in warranty ; and Payne claims to have derived title thereto from the succession of Walter A. Kinhead, by appropriate judicial proceedings had in his mortuaria.
The main question for determination then, is the validity and sufficiency of the sheriff’s deed of sale to the property in dispute, hearing date January 5th, 1867, and under which defendants claim ownership aiid possession.
' The substance of plaintiff’s averments is that her deceased brother, John G. Wilson, was the owner of said property until the date of his death, February 14th, 1879; that he had never been divested of his
Defendants and warrantors make, substantially, the same answers; and their exceptions are outlined in our former opinion. When the cause went down to the court below, their answers were elaborated, their defences enlarged, their exceptions referred to the merits and, on the trial, there was a judgment in favor of the defendants, rejecting plaintiff’s demands as in case of non-suit, and, therefrom, she has appealed.
I.
(a.) The following appear to be the conceded facts, viz.:
That John G. Wilson was the brother of the plaintiff, and she is his sole legal heir.
That Wilson purchased the undivided one-lialf of the Sans &ouaplantation, in 1857, from Sarah Ogden, wife of James A. Kinhead, on terms of credit; and, of the purchase price of $60,000, there remained due in 1860, $18,000, secured by mortgage.
That Sarah Ogden died in 1858, leaving a will in which her husband was instituted universal legatee, and George R. King was appointed executor. That, subsequently, James A. Kinhead died, leaving a will, in which he made a special bequest of $10,000 in favor of his brother, Walter; one of $10,000 in favor of his sister, Mrs. Elizabeth McMath; and one of $5,000 in favor of his brother, Thomas. That George R. King was qualified and confirmed executor, and the respective wills of Sarah Ogden and James A. Kinhead were duly probated and admitted to record. That, in 1860, King, executor, proceeded via exeeutiva to foreclose Sarah Ogden’s vendor’s mortgage against the land in Wilson’s possession. That no further proceedings were taken thereunder until 1866, when the executory proceedings were converted into proceedings via ordinaria, and, upon the defendant’s confession of date October 6th, a final judgment was rendered and signed on the twelfth, recognizing and making executory said mortgage, as securing said debt for the residue of the purchase of said land. That under said definitive judgment an execution was issued, the mortgaged property seized, advertised and sent to sale, on the 5th of January, 1867, and the sheriff adjudicated same, in indivisión, to Walter A. Kinhead and Mrs. Elizabeth McMath,
(6.) The following appear to be the disputed facts, viz.:
That Walter A. Kinliead and Elizabeth McMath never possessed as owners; the averment of plaintiff’s petition being that they took arbitrary and unauthorized possession without the color of legal right, and are, therefore, mere naked trespassers. That said Kinliead and McMath never paid any part of the sum of $4,500 stated in the sheriff’s deed as the purchase price. That John G. Wilson never recognized or ratified said sale or adjudication, either expressly or by way of implication. That the successors of said Kinliead and McMath in title, were in legal bad faith, also, and all were bound for the payment and restitution of revenues.
(c.) This resume of conceded and disputed facts narrows the controversy to one principal issue, and points to the sheriff’s sale of January 5th, 1867, as the pivot on which our decision must turn ; for one of two propositions is true: 1st, That the sheriff’s sale was a valid one, and conferred title on the adjudicatees; 2d, that the sheriff’s deed was a title translative of property, and a foundation of defendants and warrantors’ claim of ownership by prescription, otherwise defendants title must be rejected, and that of plaintiff recognized.
Tlie first question to wlucli we will 'devote our attention is the validity rel non of the sheriff’s sale, and his adjudication of Wils.on’s property to Walter A. Kinliead and Elizabeth McMath, of date January 5th, 1867.
(a.) It is apparent, and should be at once observed that Mrs. McCall, suing in virtue of her right as sole heir-at-law of John G. Wilson, for property that has descended to her as an inheritance, occupies the exact attitude before the court, in respect to the sheriff’s sale, as Wilson would himself occupy as plaintiff. An heir can have no higher right than his ancestor in title.
“ The heirs of a deceased person are seized of his succession at the very instant oí his death, and the right of possession that the deceased had, continues in them, with all of its defects and advantages; the change in the proprietor producing no change in the nature of his possession.” Heirs of Castle vs. Floyd, 38 Ann. 583.
From this tie >rem comes the proposition that there was no necessity for the registry oí the sheriff’s deed of sale to A. Kinliead and McMath, in order to affect the heir of John G. Wilson, the seized debtor, with notice; for it has been decided “that an unrecorded deed transfers the property to the purchaser just as effectually as a recorded deed, as against all the world, except creditors of the vendor, and bom jicle purchasers from him without notice.” Logan vs. Hebert, 30 Ann. 732; White vs. Sheriff, 32 Ann. 130.
(b.) As preliminary to the discussion of the validity of the deed of the sheriff comes the question of the admissibility in evidence of the return of the sheriff, which appears to have been endorsed by that officer on the returned writ of fieri facias in the clerk’s office, a few days subsequently to the date of sale and deed.
The counsel of the warrantors and defendants offered and caused to be filed in evidence, the judgment, execution and sheriff’s deed of sale, unaccompanied by said official return; and when the latter was offered by plaintiff’s counsel in rebuttal, the former counsel objected to so much of the return as recites that “ the purchasers failed to comply with the conditions of the sale,” on the grounds: 1st, That this statement constitutes no part of a return, and refers to a matter of which a return is no evidence; 2d, that a return is incompetent to contradict a sheriffs’ deed, which cites compliance with the conditions of sale; 3d, that in a purely petitory action, such evidence is incompetent to contradict a sheriff’s deed, upon which defendants’ case depends; 4th, thatiuasmuch as plaintiff’s petition does not assail the sheriff’s deed as incomplete or illegal, the proof is inadmissible under the pleadings.
The one drawn in question is a judicial title, and the whole of the judicial proceedings which culminated in the sale, including the petition, citation, judgment, execution notice to appoint appraisers, advertisement, appraisement and sheriff’s deed, are in evidence. This return forms an essential and integral part of the record, and, under ordinary circumstances,-is admissible in evidence, as such, when the remainder has been already offered and filed in evidence. We do not think this case presents an exception to this rule. While it is, also, true that, in a purely petitory action a trial of titles should be had, upon the face of those presented, and as a general rule their validity cannot be assailed or attacked collaterally; yet in this case defendants’ counsel offered and introduced in evidence, as collateral and corroborative circumstances, proofs of Wilson’s voluntary abandonment of the property, and silence as a claimant of it, through a long series of years; his alleged declaration that he no longer owned the property; his recognition of the ownership of A. Kinhead and McMath ; proof of the fact that said purchasers were beneficiaries of Sarah Ogden and James A. Kinhead, and as such, entitled to the proceeds of sale, to whom, as legatees of the latter, same were destined primarily; the subsequent acts and conduct of King, executor, as the agent, attorney and affiant of Walter A. Kin-head in certain judicial proceedings looking to the collection of rent from Lovejoy as tenant under him, of the property in dispute; and we do not see how we could in a spirit of fairness and perfect justice to the plaintiff, preclude similar proof in rebuttal by her. We think it abetter rule, in doubtful cases, to admit evidence than to reject it.
Especially is this true when the trial occurs before a judge. The objection urged, seems rather to go to the effect than to the admissibility of the evidence. Under all the circumstances we deem it best to give it consideration. But in admitting this return as evidence, we do not wish to be understood as holding that it is to be viewed in the light of an attack upon a judicial title, but merely as an ingredient of it, for certainly the doctrine upon which the judge a quo rested his decision, is too well founded to admit of question. 2 Ann. 509; 6 Ann. 688; 8 Ann. 503; 23 Ann. 175; 24 Ann. 224, 445 ; 29 Ann. 698.
But the effect of this return is to show, as a circumstance, the imperfection or incompleteness of the title in itself, — it being a part of the judicial proceedings through which it emanated. Its value we will next consider.
(c.) The law imposes upon a sheriff the duty of passing “ an act to
It declares that “ the adjudication * * has of itself alone, the effect of transferring to the purchaser all the rights and claims which the party in whose hands it was 'seized might have had to the thing adjudged.” C. P. 690.
■ The act of sale “masfmake mention,” among other things, “of the manner in which the purchaser has paid the price,” as well as “ of the price and conditions on which (the property) has been adjudged.” C. P. 693.
It shall conclude by selling and transferring to the purchaser all the right which the former owner had to the thing sold. C. P. 694.
“This act of sale adds nothing to the force and effect of the adjudication, but it is only intended to afford tjhe proof of it.” C. P. 695.
“ The sheriff shall, within ten days at farthest from the adjudication, deliver or direct to the clerk of court which issued the writ of fieri facias the original of the act of sale which he has passed to the purchaser for the object sold to him,” &c. C. P. 647.
“ The sheriff * * shall deliver or direct to the clerk of the court the original of the writ on which he shall endorse a return signed by himself, of the manner in which he has executed it,” and within seventy days after its issuance. C. P. 700.
“ In his return the sheriff shall specify the object seized and sold, and shall declare whether the sale was made for ready money, or on credit, who was the purchaser, at what price, and on wdiat conditions.” C. P. 703.
Prom these consecutive provisions of the Code of Practice, which are directory in their character, it appears that, while it is expected that the recitals of the act of sale and the return of the sheriff will be consistent, the latter do not control the former, for the plain reason that the supposition is that the return will follow the act of sale in terms, as it must in date, therefore, the deed must control the return. As a matter of fact the deed of sale was executed by the sheriff on the 5th of January, 1867, and his return was not filed in the clerk’s office until the 25th of that month. The averment of plaintiff’s petition — and it is in keeping with other evidence on the subject — is, that the purchasers' took possession of the property on the 5th of January, 1867, and, therefore, twenty daysj)rior to the filing of the return. If the recitals of the return to which the purchasers were not parties, or privies, are held to control the recitals of the deed of sale, we would have the anomalous condition of affairs presented, of a party holding, as owner, immovable property,
Surely this is not the law !
But we are not left in doubt on this subject, for the terms of the Civil Code in treating “ of sales by auction,” are, that “ the adjudication is the completion of the sale; the purchaser becomes the owner of the article adjudged, and the contract is, from that time, subjected to the same rules which govern the ordinary contract of sale.” R. C. C. 2608.
This article, and the corresponding article of the Code of Practice, have been the subjects of frequent judicial discussion, and quite a contrarity of opinion has been expressed as to tire particular time at which a judicial, indefeasible title passes to a purchaser; and plaintiff’s counsel cites the abjected expression in the return, as proof of the non-payment of the price, and of the incompleteness of the adjudication, under C. P. 689.
But this argument was met and answered in Commissioners of the Bank of Orleans vs. Hodge, 8 Rob. 450, in unmistakable terms of which the following are pertinent:'
“The evidence establishes, that the property on which the appellees’ execution was levied, had been adjudicated to Andrew Hodge, Jr. * * for the sum of $7000 cash, which, if paid to the amount due, was to be received by the Union Bank in satisfaction of the execution issued at their suit against Commagere.
“ Such adjudication, under article 690 of the Code of Practice, thus .made has of itself alone, the effect of transferring to the purchaser all the rights and claims which the party in whose hands the property was seized, might have had to the thing adjudged; and, under Art. 2586 of the Civil Code, — (2608 of Revised Code) — is the completion of the sale; and the purchaser becomes the owner of the thing adjudicated. Here, Andrew Hodge put himself in possession of the property purchased, immediately after the adjudication; had the property assessed in his name; and has paid the taxes thereon ever since. The writ was returned by the coroner, who, it is true, stated in his return that the purchaser had not complied with the conditions of the sale; but it appears that no other proceeding was had; and that, although the coroner might have exposed to sale anew the property seized, and have adjudged it to another person, as he was authorized to do by Art. 689 of the Code of Practice, . the property was delivered to the purchaser, who, by the effect of the adjudication, and although indebted to the bank in the amount of the purchase, became vested with the rights of*1135 ownership formerly belonging to the defendants in the execution. Thus the sale was complete.”
It would be' difficult to find a case more completely like the one at bar, than this.
It is true that Article 689 of the Code of Practice declares that “ if the person to whom the property has been adjudged, shall refuse to pay to the sheriff the price of the adjudication * * the sheriff shall expose to sale anew the thing sold, and adjudge it to another;” and it has been held to render the adjudication.incomplete.
In Washburn vs. Green, 13 Ann. 332, this article was construed with R. C. C. 2608 (2586), thus:
“ The purchaser at a judicial sale acquires such a vested right to the property by the adjudication, that it cannot be divested and taken from him, unless he refuses to comply with the terms of sale. It is in his power, by a compliance with the terms of sale, to become the owner bj indefeasable title. It cannot be taken from him. In this sense, the adjudication is the completion of the sale.”
There are many decisions to this effect: 14 La. 588; 5 La. 472; 15 La. 398; 2 Ann. 361; 14 Ann. 449. But from a careful perusal of them all, the underlying principle will be found to bo, that the purchaser must be first called upon to comply with the terms of the sale and pay the price, and must be shown to have refused so to do. In such case, his refusal, or declination, is treated as a mere passive violation of a contract, the enforcement of which must be preceded by a default, as a condition' precedent.
Upon a consideration of the authorities, our predecessors said, in Doll vs. Kathman, 23 Ann. 486:
“ The defendant, it is charged, has never paid any part of the price of the property, and it is not shown that he has. It is argued on the part of the plaintiffs, that never having paid for the property, he is not the owner of it. It is not shown, however, that the heirs, or any person authorized, have ever made any demand of payment, or that defendant has been put in deíaiilt, a condition precedent to the right of the plaintiff to recover.” The court then cited Washburn vs. Green, supra, as consistent with that theory.
But the question of the purchaser’s compliance is not one enpais. The sheriff promptly executed an act of sale, in precise conformity with the adjudication. This act affords proof of the adjudication, and it recites the payment of its price. This act must prevail against the return.
In Carroll vs. Schun, 34 Ann. 423, we had under consideration, and passed upon the comparative weight and value, of recitals contained in
Having reached the conclusion that the sheriff’s deed is unaffected by the recitals in his return, we must conclude that it has no manifest imperfections, and conveyed the title.
III.
Plaintiffs urge, as an objection to the completeness and sufficiency of the defendants’ title, the absence of all proof of the payment of the price of sale, or of any satisfactory adjustment of the price, with King, executor, or of a delivery of the sheriff’s deed to Walter A. Kinhead and Elizabeth McMath as purchasers.
They offered in evidence certain other judicial proceedings and records, for the purpose of showing certain judicial, and extra judicial declarations of said purchasers, antagonistic to their alleged acquisition of title. These were objected to' by defendants’ counsel, and their objections were sustained, but the documents were brought up with a bill of exceptions. The main objections to their being received in evidence were that they are res inter alios aeta and impertinent to the issue.
All of these questions falling under one general head, may be treated together.
(a.) As we have already ascertained, the simple failure of the purchaser to pay the price does not have the effect of divesting his rights under the adjudication, and hence the absence of proof of the payment of the price, could have no greater effect.
(l>.) Under the law the purchaser is not entitled to the possession and control of the sheriff’s deed. The law says “ the sheriff shall, within ten days at farthest from the adjudication, deliver to the clerk of the court * * the act of sale, etc.” C. P. 697
(e.) Neither judicial, nor extra-judicial declarations made by Walter A. Kinhead, or Mrs. Elizabeth McMath, could be received, in a petitory action, for the purpose of impeaching a judicial title. It does not matter to the plaintiff, as Wilson’s simple heir, that such title was not of record when she filed her suit. It has been disclosed and recorded since. Her only recourse is to a direct action.
Under the view of the case which we entertain, all of this evidence was properly rejected. On the whole we conclude that the defendants’ titles are good and valid, and that they are entitled to a final judgment in their favor, and the decree appealed from should be so amended.
