No. 10,802 | La. | Mar 15, 1891
The opinion of the court was delivered by
This is an action to annul a judicial sale of certain property, or to recover its proceeds.
It is urged, as a ground of nullity, coupled with charges of fraud and ill practices, that when the writs issued the judgments had been satisfied and so had no existence.
An exception that plaintiff occupied conflicting positions and should be made to elect, having been sustained, the plaintiff elected, reserving a bill and the defendant then filed a plea of estoppel.
That defence rests on the averment that plaintiff, having appointed an appraiser to value the property seized and having, after the sale, voluntarily surrendered to the plaintiff possession of the property adjudicated to him, has no standing in court to contest the title of the respondent, or to inquire into the debt, evidenced by the judgments, w irfeh were the basis of the sale.
Prom a judgment rejecting his demand the plaintiff prosecutes this appeal.
Plaintiff’s contention is that he was not allowed certain credits resulting from partial payments, and that he was not credited with the value of a number of parish judgments, which he avers to have given in payment to defendant, some |9500.
It appears that Henry, under certain judgments, some obtained and one acquired by him, issued execution against Parson, under which a number of lots of ground, some movables and certain parish judgments in the name of Henry, were seized by the sheriff who notified Parson who appointed an appraiser, and'it is claimed that some seven months after the sale, according to a previous agreement, Parson surrendered the property to the purchaser, Henry.
Parson was at the time, a resident of Natchitoches parish, where the judgments were rendered and executed. He was present and did not enjoin or even oppose the sale, but waited three years before bringing this suit.
Under the facts disclosed by the record it clearly appears that Parson was duly notified of the seizure of the specific property offered for sale; that he voluntarily appointed an appraiser, was present and permitted the sale to take place without opposition. This is enough to oust him.
It will not do for Parson to say that he made the appointment at the instance of Henry. He was once a sheriff and therefore knew the significance and far-reaching effect of such an act, which is not a vain ceremony. He has not shown any error, fraud or violence.
Evidently he has no standing in court in this suit. 27 An. 314; 11 An. 64; 5 An. 367; 7 How. 172" court="SCOTUS" date_filed="1849-02-18" href="https://app.midpage.ai/document/erwin-v-lowry-86470?utm_source=webapp" opinion_id="86470">7 How. 172; O. P. 612.
This view of the case dispenses the court from formally determining the contention on its merit, in relation to which it may however be said that the evidence does not establish the nullity claimed and that the ostensible sale of the parish judgments was not a dation en paiement but rather that the same was a mandate garbed as a transfer, nominally, for value received for some occult purpose or scheme.
Judgment affirmed.