GRANT AND OLDEN vs. WALDEN, 6 La. 623

In this case the Judges delivered their opinions seriatim. Mathews, J. This is a petitory action in which the plaintiffs seek to recover from the defendant (whom they allege to be a possessor without title,) three lots of ground described in their petition, and situated in the faubourg St. Mary, &c. The defendant in his answer sets up title. Judgment was rendered in bis favor in the court below, from which the plaintiffs appealed. The titles adduced by the parties to the suit show that they claim from the same original source, through different channels.

The deed to the plaintiffs purports to convey to them the right to the property in dispute which the United States had acquired under the Marshal’s sale by virtue of an execution levied on these lots amongst many others as belonging to Edward Livingston.

The defendant claims under a sheriff’s deed made by the sheriff of New-Orleans, in pursuance of a sale under execution issued on a judgment rendered by the District Court of the first Judicial District, in which the lots in question were decreed to be subject to several judicial mortgages (of which the defendant is assignee,) resulting from the registry of judgments against Livingston. The defendant claiming title from the same source from which the plaintiffs derive their rights, he is not at liberty to attack the validity of the title adduced by them.

The question presented by the case for decision, relates to the legal force and. effect of the titles adduced by the parties litigant. That shown by the plaintiffs is good and valid, sufficient to authorise a recovery, unless that relied on by the defendant is better. He pursued them in a former suit as third possessor of the r * i * •. i property, subjected to judicial mortgages of which he is assignee as above stated. The pursuit was in the via ordinaria although he had taken some of the steps required by the Code of Practice to authorise an immediate seizure and sale.

That suit ended as I have already stated, in a decree ordering a seizure in execution of these lots specified in the petition as subject to the lien claimed by the plaintiff. The seizure was made by the sheriff, the property was exposed to sale, the plaintiff became the purchaser and now relies on the deed from that officer as evidence of his title. The validity of this instrument is attacked by the plaintiffs in the present action.

They assume as a general principle, that, in forced alienations of property under authority of justice all delays and formalities required by law, must be strictly fulfilled on pain of nullity. Their counsel also assumed in argument that the return of the sheriff on the execution and his recital on the deed that the property was sold after having been duly advertised according to law, afforded no evidence, not even prima facia, of the truth of the facts stated in the return or those declared in the deed. The first of these principles I believe to be correct; the latter not so.

In relation to sales made by sheriffs and other ministerial officers under executions, it has been settled by decisions of this court that the returns of the officers are to be taken as prima facia evidence between the parties to a suit. See 8 Martin, 682 and 4 La. Rep. 473. As it regards sales made under authority of executions issued on judgments our decisions have established the doctrine of presumptions favorable to the course ■of conduct pursued by ministerial officers in such situations.

These presujnptions like all others must yield to evidence, adduced to the contrary; notwithstanding the difficulty necessarily inherent in all attempts to prove negative propositions. I see no good reason to change the doctrine already established. To make such a change would require much more forceable reasons than might have sufficed for the establishment of a different principle in the first instance. For, in the belief of the correctness of those decisions many may have been induced to purchase property at sheriff’s sales.

Three principal grounds of nullity are alleged against the validity and legal effect of the sheriff’s deed, to transfer the property in dispute to the defendant in the present case. First, want of notice of the judgment, second, want of notice to appoint appraisers, and third, want of three days notice to the defendants in execution after the seizure of the property.

As to the two first of these notices required by the Code of Practice, the evidence of the case shows clearly an impossibility that persona] service could have been made, for both the defendants were absent from the state: and as to the third it is not pretended that any such notification was ever made.

If the law imperatively requires the last of these notices to be given, and the sheriff failed in the fulfilment of his duty in this respect, the sale made by him and deed consequent thereon, did not divest Grant and Olden (defendants in that case and plaintiffs in this,) of their title to the property now in contest. Whether this proposition be true or false depends on an

interpretation of several articles of the Code of Practice. Believing it to be true and being sufficient for the decision of the case, I forbear to determine whether or not the plaintiffs have established negatives in relation to the two first notifications. The evidence on the record shows clearly that the sheriff proceeded to sell the property thirty-one days after he had received the execution or after he had seized. The law requires real estate and slaves to be advertised at least thirty days before exposure to sale, &c.

By the art. 654 of the Code of Practice a duty is imposed on the sheriff by which he is required, as soon as he shall have executed a writ of fieri facias “ to give notice thereof in writing to the debtor, &c. which he shall deliver tp him in person or leave at his ordinary place of residence.

Art. 365:” “Three days after this notice the sheriff shall advertise the sale of the property seized, <fec.” The same delays and forma, lilies must be observed in executing writs of seizure and sale against mortgaged property, as are required where property is seized under a writ of fieri fa- Had the sale by the sheriff in the present instance been one under an ordinary fieri facias without advertisement, thirty days after notice of seizure it must be admitted that it would not have transfered to the purchaser the property sold in consequence of the officer not having pursued the formalities required by law.

It would be contrary to the first principle assumed on the part of the plaiutiffs and admitted to be correct, to wit: that forced sales are void unless all the formalities required by law be pursued in the alienation of property. The sale made was in pursuance and in execution of a judgment of the court rendered in a suit prosecuted in the ordinary mode of proceeding in civil actions, and it might be questioned whether the rules applicable to sales under ordinary writs of execution, ought not absolutely to govern the case.

But admiting it to partake rather of the mode authorised in executory process, still the conclusion will he the same. In the

chapter of the Code of Practice which treats of executory process, by art. 745 it is required of sheriffs that “when they sell property which has been seized conformably to the provisions of this chapter, they must cause the same appraisements to be made and observe the same delays and formalities as are prescribed for the sale of property seized in execution.” What are these delays and formalities?

Respecting judgments subject to “appeal, the party in whose favor one is rendered can only proceed to the execution after ten days, counting from the notification which he is obliged to make to the opposite party, &c.” This is one of the delays and formalities provided for by law. An other is that, notice of seizure must be given to the defendant in execution three days previous to advertisement. Articles 654 and 655. The same delays and formalities must be observed in executory process.

The last of these formalities and the delay of three days was not observed by the sheriff in executing the judgment which Walden had obtained against the present plaintiffs; therefore the sale made by him is void, in other words their right to the property was not transfered to the purchaser, because all the formalities prescribed by law were not pursued in that forced alienation.

So in a sale of immoveable property under a writ of seizure and sale, issuing on a judgment against third possessors of mortgaged property, three days notice is required to be given after seiz¿avertisins-f volT and trlns! aS property to the purchaser. Tho sheriff's upon tile Scu“evidenced chaser at sheriff's sale; and he who see!ls annul such an alienation fomaiS wére'not compiied Wlth' Much was said in the course of argment by the counsel for the appellee tending to show that the same reasons or just causes requiring notice of seizure in a fieri facias have no existance in cases of orders of seizure.

This argument was based we presume on the maxims, that, “lex consistit in rationed cessante ratiene cessat ipsa lex; and that argumentum ab inconvenienti semper valet in lege” These maxims may do very well when the law is doubtful. But J J when it is express and positive and enacted by legislative authority as we believe the articles of the Code of Practice in relation to the subject now ' under consideration to be, they are without force. The law does not distinguish between these different executions, and we as judges are not permitted to make any distinction.

It is therefore ordered, &c. that the judgment of the District Court be avoided, reversed and annulled; and it is further ordered, adjudged and decreed, that the plaintiffs and appellants do recover from the defendant and appellee the three lots of ground as described in their petition, with costs in both courts. Bullard, J., The court is unanimous in adhering to the principle settled in the cases of Barabino vs. Brashears and of Lafon vs.

Lewis, that the sheriff’s deed and return upon the execution are prima facia evidence of title in the purchaser at sheriff’s sale, and consequently that he who seeks to annul such an alienaA J tion must show that the formalities required by law were not x " complied with. In this ease it appears that only thirty or thirty-one days elapsed between the day the writ came into the hands of the sheriff and the sale of the property, and the question is whether the sheriff was authorized by law to sell without allowing further delay.

It is conceded on all hands that in the case of a fieri facias the objection would be fatal, that the sheriff is bound to seize immediately, to give three days notice of the seizure, and to advertise during thirty days after that notice before he can proceed to sell. The 745th

article of the Code of Practice requires that “when the sheriff sells property which he has seized conform-ably to the provisions contained in this chapter, he must cause the same appraisements to be made, and observe the same delays and formalities as are prescribed for the sale of property seized in execution.” The

chapter of the Code containing this provision relates to executory process, and the preceding

article applies the same rule to that process whether directed against the original debtor or against a third possessor. In the case now before the court the present-plaintiffs were third possessors. I take it to be an admitted principle, that where the law gives a

summary remedy, it may be waived and the ordinary way resorted to. If the mortgagee may apply to the judge in chambers for executory process on giving certain previous notice, he may also at his option cite the party to show cause why such process should not issue, and the judgment of the court pronounced contradictorily with the party is, as to the process to be issued in pursuance of it, similar to the fiat of the judge at chambers. I do not think there are two kinds of orders of seizure and sale in any other sense of the word, and I am of opinion that whether issued by the judge summarily or by a court after citation to the third possessors, the execution of the writ is governed by the

article 745 of the Code, and the sheriff in executing the writ is not to be guided merely by analogy. The present defendants were third possessors of the lots subject to judicial mortgage, and the proceeding against them was prosecuted under that part of the Code which regulates the hypothecary action, to wit:parí 1, chap. 3, sec. 3. I will not pretend to say that a mere failure to furnish a list of the property seized would have been a fatal objection> nemo cogitur ad vana, but I do not see how we can dispense ° ’ x with the three days previous to the advertisement any more than with the thirty days after.

They are both equally delays to which the defendant in a fi. fa. is entitled. If it would ° J be useless and nugatory to furnish a list when the writ itself leaves no discretion as to what property shall be seized, it does not follow that the delay of three days would be equally useless. The possessor is authorised to pay it any moment before the sale and cause the property to be released. The delay is therefore a right accorded to him.

It has been intimated, although I did not understand it as admitted in argument, that a different practice has prevailed, particularly in this district, and fears are expressed that this decision will be productive of much litigation. If I was satisfied that the courts had since the promulgation of the Code of Practice put a different construction on these articles and that the practice had been generally acquiesced in, such cotemporaneous

interpretation of these provisions would be entitled to great weight in my mind. But on these points the court is not judicially informed, and I am not prepared to yield the conviction of my judgment to the apprehension of future evil. In my opinion the judgment ought to be reversed, and ours should be for the plaintiffs.