Munholland v. Scott, 33 La. Ann. 1043

Munholland v. Scott

33 La. Ann. 1043 | La. | 1881

The opinion of the Court was delivered by

Fenner, J.

This action is brought by plaintiff -as sole heir of Lorenzo D. Munholland, to annul a sheriff’s sale of land to Mrs. Scott, made in executory proceedings taken contradictorily with, the administrator of his ancestor’s estate.

The grounds of nullity alleged are manifold, viz.:

1st. Fraud and collusion between the defendants. We find in the record not the slightest evidence of fraud, actual or constructive. We do not even discover proof that plaintiff was injured by the sale. Nothing in the record shows the property brought less than its value, at forced sale, at the time when it was sold, or that it would have *1045brought more under any proceedings, however regular. If the then existing depression in property values had afforded legal ground for •demanding a postponement of the sale under creditor’s process, undoubtedly, a year or two later, the property would have sold for more. But the creditor had the right to require the sale then, — and it brought its then value as appraised by persons properly appointed, and whose good faith is not attacked. This is damnum absque injuria.

2d. That the note on which the order of seizure and sale was issued ■was prescribed and the mortgage thereby extinguished, and that the administrator had no right to waive prescription, and the sale was, therefore, null and void.

Courts cannot supply the plea of prescription. C. C. 3463.

The judge was authorized and bound to issue the order of seizure and sale, although the note appeared to be prescribed on its face.

Non constat that the plea of prescription, had it been opposed, might not have been overthrown by proper evidence of acknowledgment. The failure to oppose the plea is not even evidence of collusion or fraud, in this case, because under the existing jurisprudence in 1867, with reference to the effect of the war and the application of the maxim, contra non volentem, etc., there was no reason to suppose the note prescribed.

In any event, this circumstance could not affect the validity of the ■order and sale; but the sole remedy of the heir would be against the -administrator and his securities. Routh vs. Bank, 28 An. 569 Perroux vs. Lacoste, 19 An. 266; Gillis vs. Carter, 29 An. 698; Gill vs. Hosmer, 20 An. 219.

The remaining informalities and irregularities set forth as grounds for annulling the sale are covered by the prescription of five years established by the acts of 1835 and 1855, now embodied in Art. 3543 of the Civil Code, which runs as well against minors as persons sui juris.

They are the following, viz.: Waiver of notice of order of seizure and sale. See Allen vs. Couret, 24 An. 24.

Want of actual seizure, the purchaser having gone into possession. See Pike vs. Evans, 4 Otto, 6.

Postponement of sale. The creditor had the right to direct the postponement, with re-advertisement; and the writ did not expire in seventy days, as claimed. See Taylor vs. Graham, 18 An. 656; Monition of Hall, 21 An. 692.

Sale for less than the inventory appraisement. See Fraser vs. Zylics, 29 An. 534; Herrmann vs Fontelieu, id. 505; Succession of Hood, 33 An.

These irregularities are all causes of merely relative nullity, arising in proceedings subsequent to the decree, and covered by the statutory prescription pleaded. Woods vs. Lee, 21 An. 506.

It is a statute of repose, intended to quiet titles, and to create con*1046fidence in judicial titles, at least, after the lapse of this ample and reasonable time.

We have carefully examined the authorities quoted by plaintiff’s counsel, and do not find them to support the contrary views advanced by him.

The charge that no price was paid for the land, and that no debt of the ancestor’s succession was extinguished thereby, is manifestly unsupported by the evidence.

We find no error in the judgment appealed from, and it is affirmed at appellant’s cost.