2 La. Ann. 416 | La. | 1847
The judgment of the court was pronounced by
The plaintiffs have instituted this action to annul a sale of a tract of land, made by the sheriff under an execution issued at the suit of the plaintiffs against Mapes 8f Singleton. The alleged nullity is, that the sale was made for cash, without a previous appraisement, in consequence of which the land was sold at a sacrifice, to the prejudice of the plaintiffs’ rights. The defendant avers that the sale was legal, and that it was made without appraisement, at the request of the plaintiffs. There was a j udgment for the defendant in the court below, and the plaintiffs have appealed.
It is shown by the evidence that Mapes Singleton mortgaged the tract of land in question to the plaintiff's, to secure the repayment of a loan of money. The act contained the following clause : “ They, the said appearers agreeing and hereby consenting that if the said sum of §1,000 shall not be paid when the same becomes due, that then the said president and directors, their attorney or-assigns, may obtain an order of seizure and sale, and cause the above described mortgaged property to be sold to the highest bidder, for cash, without appraisement, after thirty days’ advertisement.” Upon this act, which is authentic in form, the plaintiffs presented a petition to the district judge praying for an order of seizure and sale, in which no reference was made to this stipulation, and the right to sell without appraisement was not claimed. The prayer of the petition is, that an order of seizure and sale may issue as the law directs; that the px-operty, on which petitionei’s “ have a special moi'tgage for the payment of said sum, or so much thereof as may suffice, be seized and sold as the law directs,” &c. Upon this petition the judge made the following decx-ee : “Itisox'dex'ed that an order of seizure and sale issue as prayed for ; that the propei’ty upon which petitioners have a special mortgage, or so much thereof as may suffice to pay plaintiffs’ demand, be seized and sold as the laiv directs. In the wi'it, which was issued by the clerk upon this ordei’, the shei'iff is dix-eeted to seize and sell for cash, without the benefit of appraisement, the following property, &c.; and, in conformity with this direction, the sheriff advertised the property for sale on those terms, and adjudicated it for cash, without previousappraisement, to the present defendant, for §13.
It is manifest that the sale was not made in conformity with the order of the judge. The stipulation in the act of mortgage was one made for the benefit of plaintiffs, which it was discretionary with the bank to have enforced or to renounce. It was virtually waived by claiming a seizure and sale according to law, the true intendment of which is, that the proceedings were to be in conformity with the rules which govern seizures and sales under exeeatoiy process. The order was in accordance with the prayer of the petition, and no sale could have been legally effected under it, without observing the formalities required in ordimuy cases under executory proceedings, one of which is, that the property shall be previously appraised. The clerk was not authorised, under the ox-der granted by the judge, to direct that the sale should be made without appraisement. His aet was null, and oonfexTed no authority on the shei’iff to dispense with the observance of a formality, which was so essential as the result px’oves, to the protection of the plaintiff's’ rights.
It is therefore ordered that the judgment of the District Court be reversed. It is further ordered that the adjudication and salo-made by the- sheriff of the parish of Washington to the defendant, James A. Bradford, ou the 6th day of
Eustis, G. X, lieing interested ill this case, did not sit on-its trial.
