Perron v. Maillan, 10 La. 520

Perron v. Maillan

10 La. 520 | La. | 1837

Bullard, J.,

delivered the opinion of the court.

The plaintiff in this case sues to recover a tract of land, in the possession of the defendant, of three arpents, front' on the-Mississippi, in the parish of West Baton Rouge. He claims-title under a sale to him by T. G. Morgan, who, he alleges; acquired it by purchase from Maximilian Leblanc, by whom it had been purchased,, on the 21st January, 1828, at a sheriff’s sale, in the suit of Leblanc vs. Firmin Guidry, the *522tract of land having been sold as the property of Baptiste Guidry, the surety, in a twelve months’ bond.

The sheriff’s deed executed and duly recorded in the clerk’s office, from whence the execution issued, is full proof of what it contains in,all the courts of the state, in the same as a notarial act. But if a sheriff’s deed imports a special mortgage to secure the payment of the price stipulated in it, it must be recorded in the mortgage office of the parish where the property is situated, to- have that effect against all persons.

The defendant sets up title under a sale of Baptiste Guidry, by authentic act, passed before the judge of the parish of West Baton Rouge, on the 22d November, 1834.

During the progress of the trial the plaintiff offered in evidence, the act of sale executed by the sheriff, of the land in controversy. Its admission was objected to, on the ground that it had not been recorded in the office of the parish judge of West Baton Rouge, and that objection having been sustained by the court, and the deed rejected as evidence, the plaintiff took a bill of exceptions, to which the sheriff’s deed is annexed, and a copy is before us in the record.

The sheriff’s deed appears to be in the usual form, and there is endorsed upon it a certificate of the clerk, that it had been duly recorded in his office, within the ten days next following its date.

The only question, therefore, -which this bill of exceptions presents for our consideration' is, whether the deed was admissible in evidence without proof, that it had also been recorded iu the office of the parish judge.

The Code of Practice requires that the sheriff shall, within ten days at furthest, deliver to the clerk of the court the original of the act of sale which he has passed to the purchaser, and makes it the duty of the clerk to record the act literally in a record book, to be kept by him for that purpose, and to endorse on the original his certificate of the registry. “ This act thus recorded and delivered to the purchasers, shall be held as full proof of what it contains in all the courts of this state, in the same manner as an act before a notary would be.” Articles 697-698. A previous article requires that if the act of sale includes a special mortgage to secure the payment of the price stipulated, the sheriff shall have it recorded before sending it to the clerk. Article 696.

The deed in question does not include a special mortgage to secure the payment of the price; on the contrary, the sheriff declares that the price had been paid in hand, and *523consequently the case is not to be governed by the article of the Code last cited. The registry in the clerk’s officfe gave to the sheriff’s deed such authenticity as authorized its being read in evidence, without further proof of its execution or publicity,'and wé are of opinion that the court erred in . . • mi i , ' . . rejecting it. The effect which ought to be given to it as evidence of title against a second purchaser, by authentic act duly recorded in the parish judge’s office from the original proprietor, who, in the mean time, had remained in undisturbed possession, notwithstanding the sheriff’s sale, is a distinct question, and one upon which the decision of the 1 . . case may ultimately turn. It is a question which, in the present stage of the proceedings, we do not feel ourselves authorized to approach. How far the forced alienation was valid against B. Guidry, himself, may depen.d upon proofs, independent of the sheriff’s deed ; and the. defendant who holds directly from him may, or may not, have had notice of that alienation. Of these matters we are not sufficiently informed by the record to enable us to decide finally upon the relative pretensions of the parties.

Soinapeüto-ry action to purch<ased°Peia3t registered in the ot^uehawhenti-citr.as ydiiori-zes it to he read in evidence, proof of its «ce- or Pub"

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the case be remanded for a new trial, with instructions to the judge not to reject the sheriff’s deed as evidence, on the ground that it does not appear to have been recorded in the office of the parish judge, and that the appellee pay the costs of the appeal.