Stoute v. Voorhies

4 La. 392 | La. | 1832

Mathews, J.,

delivered the opinion of the court.

In this case, the plaintiff prays to have an adjudication and sale of his property, made by the sheriff of the parish of Lafayette, annulled, in consequence of informalities in the adjudication, and of an unjust and fraudulent combination between the bidders, the present defendants, to obtain the property sold for a price far below its real value. Judgement was rendered in favor of the defendants in the court below, from which the plaintiff appealed.

The articles fhe 8Lmtisiana Code,relate to tion, both voforcejan<3 not g°les. ^1'1^ articles 3588— 9j are pirticu* larly applicable to vouluntary sales. The articles 690-95, of the Code of Practice, relate to sheriffs’ sales, which transfer • to the purchaser all the rights of the party to the property in whose hands it is seized. The sheriff is allowed three days to make out an act of sale in form; but is not boundto do so until the purchaser complies with the terms of sale.

The principal ground of informality in the conduct of the officer, relied on for a rescission of the sale, as it appears by the evidence of the case, is the adjudication of the property after the time prescribed by the advertisement. It was advertised to be sold between the hours of ten o’clock in the forenoon and two in the afternoon, of the 25th of August, 1831.

It appears by the evidence of the sheriff, that he delayed offering the property for sale until after one o’clock, at the request of the plaintiff, who bid for it to the amount of five hundred and ninety-five dollars, and being at that price the last and highest bidder, it was struck off to him; but he failing to pay this sum by him bid, the officer about three o’clock or some time after, again put the property up for sale, and at this time, it was adjudged to Voorhies, one of the defendants, as the highest bidder, and was afterwards conveyed by the sheriff to him and several other of the defendants.

From these facts, the question arises, whether the sale was not illegal, as not having been made in the manner prescribed by law, and contrary to the notice publicly given. It is proper, however, to settle a previous question, raised by the plaintiff’s counsel, relating to the right acquired by the bid of the former purchaser, although he did not immediately comply with the condition of the sale, which was for cash. In support of this right, reliance is had on the articles of the Code of Practice, 690 — 95; and on the articles of the Louisiana Code, 2588 — 90. The provisions of the Louisiana Code, relate to sales by auction, both to voluntary and forced sales; but we are of opinion that the article 2589, is particularly applicable to voluntary sales, as is also the preceding t _ article.

The Code of Practice relates to sheriffs sales, and according to the articles cited, an adjudication has the effect of The articles 690-95, o transferring to the purchaser all the rights of the party in whose hands the property was seized; and the sheriff is allowed three days, within which he must make an act of sale in form. This transfer of rights, does not, in our opinion, take place; and, consequently, the officer is not bound to perfect the sale by an act translative of them to the purchaser, unless the latter has complied with the conditions of such sale. The condition of the adjudication in the present instance, was, that the purchaser should pay cash; this he was unable to do, and the sheriff was authorized to expose the property to sale anew, and adjudge it to another person. Code of Pr. 689.

So if a sale is made for cash, and the highest bidder to whom it is bid off, fails to make immediate payment, the sheriff may set up the property and sell it anew, without re-advertising, and after the hours of sale have elapsed. There is no positive municipal regulation or principle of law, forbidding several persons at a sheriff’s sale, from combining together, and agreeing for the bid of one to betaken for all of them, to prevent competition in bids.

The authority of the officer thus to proceed, is not in any manner controled by the article 2589 of the Louisiana Code; that article applying more particularly to voluntary sales.

We must now examine the alleged illegality of sale, as having been made after the hour announced by the advertisement. Whether a sheriff would be authorized to expose property seized, for sale anew, in consequence of the noncompliance of a bidder (not the defendant in execution) with the conditions of the sale after the expiration of the hours of sale, we need not inquire in the present case. All the delay in the adjudication, was occasioned by the conduct of the plaintiff, and he ought not to be allowed to profit by his own misconduct, to the prejudice of a fair and Iona fide purchaser. It is shown by evidence, that the officer postponed crying the property at the request of the defendant in execution, until a late period of the time as advertised, and when struck off to him, he failed to comply with the conditions of the adjudication. We are, therefore, of opinion, that the sheriff was authorized immediately to proceed to adjudicate the property seized, to any other person.

As to the want of honesty in the conduct of the persons to whom the adjudication was made, it is not shown that they acted in violation of any positive municipal regulation; and the morality or immorality of their proceedings, is involved in so much doubt, as not .to form a proper basis for a decree annulling the sale.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs.