LAMBETH vs. THE MAYOR ET ALS., 6 La. 731

Mathews, J., delivered the opinion of the court. This suit is brought to recover remuneration for damages which the plaintiff alleges he has suffered by the illegal and tortious conduct and gross negligence of the defendants in relation to the sale of two lots in the faubourg Lacourse, which were seized at the instance of the corporation, and sold by the marshal of the city court to pay taxes and other dues assessed on said lots, &c.

The court below rendered judgment against the mayor, aldermen and inhabitants of the city, for the amount of debts and costs received by them in the city court, and dismissed the suit so far as it relates to the claim against the marshal. From this judgment the plaintiff appealed. The appellant claims not only the amount actually paid by him as purchaser of the lots in question at the sale by the marshal; but also all consequential damages and loss occasioned by his eviction from the property.

In truth he claims the full value of the lots, and the improvements made on them through his means at the time of eviction, as might be done if the case were one of warranty. The facts of the case necessary to be noticed in its decision are the following. Proceedings against these lots were ordered by the corporation in pursuance of provisions of

an act of the legislature, which authorised a kind of pursuit in rem, against real property in the city unimproved and unoccupied, to enforce payment of taxes, &c. In that suit which was instituted in one of the city courts, judgment was rendered and the lots were sold by the marshal under execution. The owners of the property afterwards recovered it from the possessors, under the plaintiffs title as derived from the marshal’s sale, on the ground of irregularity in the proceedings by virtue of which it was made.

The sale by the marshal being annulled, the plaintiff in the present action, the purchaser, lost the benefit which he might have obtained from sales and contracts made by him in relation to this property. The judgment which ordered the sale to pay taxes, &c., was subsequently annulled on the ground that no taxes or other assessments were owing on the property which was pursued by the court which had rendered it. The lots are shown to be worth a much greater sum than was paid for them when sold by the marshal, and to recover this amount in addition to the price actually paid is the object of the present suit.

The purchase? of property at sheriffs or marshals sales is entitled to the sum which ho realty paid and which must be reimbursed in case of eviction, the consideration having thereby absolutely failed.

Sheriffs, marshals and constables are directly responsible so fa? as their negligence or want of skill, in the execution of the duties of their offices cause a direct injury, but not for* losses remotely consequential and such as grow out of a failure to gain or make profit# The plaintiff is clearly entitled to a judgment by which the sum really paid by him shall be reimbursed, the consideration of the price having absolutely failed. Such judgment-must be rendered in proportion to the several amounts as retained by the marshal or transferred to the use of the corparation.

The right to recover more than this is assumed on the part of the plaintiff, as supported by the provisions of the Louisiana Code in relation to offences and quasi offences. The responsibility of offenders and negligent persons are laid down in broad terms by the articles 2294, 2295. The latter of these is applicable to the cause now under consideration. It is in the following words, “every person is responsible for the damage he occasions not merely by his acts, but by his negligence, his imprudence or his want of skill.

It is contended in the present instance that the loss of property, the value of which is said to be the measure of damages suffered by the plaintiff, in consequence of his eviction, was occasioned by the negligence and unskillfulness of the marshal in not having advertised the sale in a legal manner, for which he is directly answerable, and the corporation indirectly, he being the agent or mandatory. To give the effect contended for to the

article of the Code relied on, would be to make all judicial ministerial officers, such as sheriffs, marshals and consfables warrantors of all the property by them sold as agents in the administration of justice; a proposition which as appears to us cannot be supported on any principle of law, reason, justice or equity. They certainly ought to be held responsible so far as the negligence or want of skill has caused a direct injury to the person complaining of such negligence; but not ior josses remotely consequential, and such as grow out of a failure to gain.

Take the present case as an example to illustrate; what is the direct and real injury done to the plaintiff by the negligence of the marshal, in consequence of which the sale was avoided to the prejudice of the former? it does not extend beyond the amount paid on a void contract of sale, which the heirs of the officer, he now being dead, were bound to defend. An attorney at law wliose name dons not appear on the record and employed0^ the ÍnhougiíhhoPS oíg™“dütarase neotcdlywith00Stj torecoivTmoney on account of such person. On thouty0being dis£iaiVwmthbonral rrapíymentofthe money.

Where a purchaser at a marslial’s sale is aftorwanu evicted wás<notpriogdiy jury uesustaLsi¡ iie° paM"for'flw piopouy. Seizing crediSu0ndeP’ePrausibíé to°thoSpuvthan:for°theL re~ iinbui-scment of the purchase mouey" The money which remained in the hands of the marshal arising from the sale by him made, beyond the amount of taxes and costs, was according to the testimony on this subject paid in error to Mr.

Preston who had no legal authority ° x to receive it; consequently the former is still liable for this x J SUm t0 the PlaÍníÍff- The agents of the corporation are charged with having acted tortiously in pursuing property for taxes and other dues when they must or ought to have known that nothing was owing on said property. To say the least of it, this was a very careless and improper proceeding. But the injurious ^ x x x o o consequences operated immediately on the rights of the original owners, and only indirectly on those of the purchaser at the sale by the marshal.

And even in this indirect manner the real and positive injury to him is no more than the amount paid without consideration, The responsibility established by the Code of Practice against seizing creditors, (even admitting the corporation to be liable to any such in the first case, which is doubtful) cannot be extended further than the reimbursement of the price paid hy the purchaser, and by them received. Code of x x ° x J u Practice, art. 711, et sequentes. The facts of the case do not support the prescription of one year relied on by the counsel for the marshal.

It is, therefore ordered, adjudged and decreed, that the judgment of the District Court against the mayor, aldermen and inhabitants of the city, be affirmed with costs, &c. And it is further ordered &c., that the judgment of said Court dismissing the suit as against the marshal, be avoided, reversed and annulled, and proceeding here to give such judgment as in our opinion ought to have been given in the court below; it is ordered, adjudged and decreed, that the plaintiff and appellant do recover from the heirs of L. M.

Daunoy, late marshal of the city court, five hundred and sixty-seven dollars and ninety cents, with legal interest from judicial demand, and costs in both courts.