Murphy v. Jandot

2 Rob. 378 | La. | 1842

Bullard, J.

The defendant, Jandot, having sued out an order of seizure and sale against a lot of ground in possession of the plaintiff, the latter obtained an injunction to stay the proceedings, on the allegations that he was the owner of the lot by sheriff’s sale, at the time the former owner, Hannah Clark, mortgaged it to Jandot; and that although the sheriff’s deed had not been previously recorded in the office of the Register of Conveyances, yet Jandot knew of the sale to the plaintiff and of his possession. It was further alleged that no legal notices were given or demand made, before proceeding by order of seizure and sale. The injunction was dissolved with damages, and the plaintiff has appealed.

The mortgage to Jandot contains the clause de non alienando, and consequently no transfer of the property would affect his right to proceed summarily against it, as if still belonging to the mortgagor.

The deed to Murphy was not recorded in the office of the Register of Conveyances, until after the former owner had mortgaged it to the defendant. But it is said that Jandot knew of the plaintiff’s title and possession. Upon this point the evidence shows, that Jandot called at the sheriff’s office in December, 1840, and inquired if it was true that the property had been sold at public sheriff’s sale. He said that he had lent money on the lot; that he had employed Buisson to examine the titles, and that Buisson had told him that the title was good, and that he might lend the money upon it. The witness adds that Jandot was aware that Murphy was in possession of the property since the adjudication. It is further shown that the sheriff’s sale was advertised as usual in the newspapers, and that Jandot was in the habit of attending public sales, and of inquiring about property advertised, its appraisement, and its worth. It is further shown that Jandot appeared very sorry lest he might lose his money, and that he blamed his counsel.

This evidence did not appear to the judge sufficient to bring home to the plaintiff a knowledge of the sale, and we think he did not err. The knowledge 'of the possession by Murphy, does not necessarily imply that Jandot knew that Murphy had purchased at the sheriff’s sale, the more especially as no public notice had been given, as required by law, by recording the conveyance.

Judgment affirmed.