71 So. 934 | La. | 1916
This was originally an action of slander of title, instituted by J. S. Richardson and his lessees. It was converted into a petitory action by the pleadings of the defendant, O. P. McDonald, who therefore occupies the position of plaintiff. Judgment was rendered in favor of the original plaintiffs, rejecting the demand of the defendant, McDonald, to be recognized as the owner of the land, and he has appealed.
The property in contest was seized under and by virtue of a writ of seizure and sale in the foreclosure of a mortgage in executory proceedings entitled “Bank of Webster v. O. P. McDonald,” and was adjudicated to one J. I. Allen on the 26th of March, 1904. Allen sold it to one J. M. Mixon on the 7th of November, 1906, and Mixon sold it to J. S. Richardson on the 28th of February, 1911.
The defendant, as plaintiff in this petitory action, attacks the validity of the proceedings by which the property was taken from him, with the following contentions, viz.:
First. That the act of mortgage on which the executory proceedings issued .was not granted in favor of any one, nor accepted by any one as mortgagee, and was therefore a nudum pactum.
Second. That the order of seizure and sale was null because it issued without citation or notice to the defendant, and ’Without authentic evidence of the indebtedness; that the promissory note alleged to have been secured by the mortgage was the only evidence of the debt; and that the copy of the mortgage, which was- null on its face, was not filed in evidence in the executory proceedings.
Third. That'the demand or notice to pay, served on John F. Stevens, as curator ad hoc, in the executory proceedings, was null, because it was not directed to nor served upon the defendant, McDonald, nór served upon any " person as his attorney or representative,' and because the notice did not allow a reasonable time for the defendant’s appearance, ' and was therefore not due process of law.
Fourth. That all of the proceedings including the sale in the executory proceedings were null, and, if sustained, .would deprive the defendant of his property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States and the second article of the Constitution of this state.
The plaintiff in the action of slander of title, as defendant in the petitory action, filed pleas of prescription of five and ten years, and a plea of res judicata, based upon the judgment of this court in the executory proceedings entitled Bank of Webster v. O. P. McDonald, 137 La. 574, 68 South. 959.
One of the fundamental powers and purposes of government is to legislate upon titles to real estate, in the security of which the general welfare of society is involved. The Fourteenth Amendment of the Constitution of the United States only restrains the exercise of a legislative power so unreasona
The judgment appealed from is affirmed.