John Egerton and another v. Their Creditors, 2 Rob. 201

Morphy, J. A piece of ground surrendered by the insolvents, was divided into eleven lots by order of the syndic, and offered for sale for $ 1800 cash on each lot, and the balance at six, twelve, eighteen, and twenty-four months. On these terms, which were those fixed by the creditors at their meeting, Sami. C. Ogden, George B. Ogden, and Edward Yorke became the purchasers of all the lots for forty thousand and fifty dollars, a sum exceeding .the two-thirds of the appraisement which the syndic had thought proper to have made before the sale.

As this property had been purchased by Egerton, subject to an anterior mortgage created by Treat, Plant & Co., who themselves had bought it of Cash and others, under the clause de non alienando, the Achafalaya Bank, Thomas Slidell, and Samuel Thompson, who were holders of the notes of Treat, Plant & Co., executed

an act before Marks, the notary, who had prepared the deed of conveyance, ratifying and confirming the sale, and binding themselves never to attempt to impair its force and effect; but the purchasers having'refused to comply with the terms of their purchase, the deed of sale was never signed. Subsequently the syndic advertised the property to be sold at the risk of the purchasers, on the same terms- and conditions as before. At this' last sale Wm. Elorance became the purchaser of one of the lots, for the sum of $1400, He took a rule on the syndic to show cause why he should transfer the property to him.

The syndic moved for, and obtained an order, rendering the Atchafalaya Lank, T. Slidell, and Sami. Thompson, parties defendants to the rule, and notifying them to show cause why the mortgage, existing in their favor on the property sold, should not be rased and can-celled, to enable the syndic to give to the purchaser, the plaintiff in the rule, a free and complete title. The judge having made the rule absolute, the mortgage creditors have appealed.

They urge, that the sale to Elorance is null, because the property was adjudicated to him for less than two-thirds of its appraised value ; that the first sale not having been complied with, the property should have been- sold as if no sale had taken place, and could not, therefore, be adjudicated, if two-thirds of the appraisement were not offered ; that if a non-compliance with the terms of a first sale could dispense with the obligation to sell on credit if two-thirds be not offered, a cash sale could be forced on, every occasion.

When the creditors do not avail themselves of the privilege allowed them by the statute of 1826, of fixing the terms on which the property surrendered is to be sold, we are of opinion that the sale must be made on the same terms, and under the same formalities, as property seized on execution, Civ. Code, art. 2180. It must be appraised and first offered for sale for cash; if it does not reach two-thirds of the appraisement, it must then be offered for sale, fifteen days after, at a credit of twelve months. Code. Pract. arts, 675, 680, 681.

But where, as in the present case, the creditors have themselves fixed the terms of the sale, the rules laid down in the above articles are, in our opinion, wholly inapplicable, because the property can be sold on no other terms. The provision of law requiring that in forced sales the property shall bring two-thirds of its appraised value, was framed for the protection of the debtor, whose property, it was supposed, might be sacrificed by a cash sale.

This danger does not exist where the creditors, who have the greatest interest in selling the property surrendered to them as high as possible, have allowed the credit they deem the most, favorable for the sale. The syndic, moreover, is not bound to act with the same strictness as a sheriff levying under a fi.fa. He is not, we apprehend, bound to let the property go at any price, but may use his discretion, like other agents, and, under proper circumstances, may suspend or postpone the sale, if the property, is likely to be sacrificéd.

An adjudication having been made to Florance, we think that it is legal and must be carried into effect. Whether the syndic will have an action against the first purchasers, for the difference between the two sales, is a question which we are not called upon to decide in this suit, and upon which, therefore, we express no opinion.

But it is urged, on the part of the appellants, that the property, even if legally sold to Florance, has passed into his hands subject to their' mortgage, which existed on it wljen it was acquired by the insolvents ; and that, by virtue of the clause de non alienando, their rights are the same as if the property had never been sold by Treat, Plant & Co., or any of the subsequent vendors. This we believe to be true, but only as regards one of the mortgage creditors, Thomas Slidell, who never made himself a party to the insolvent proceedings.

By virtue of the pact de non alien~ ando, he was, and is still entitled to seize and sell the mortgaged property, into whosesoever hands it may pass. 2 Moreau’s Dig. p.433, 5 Mart. 620. 13 La. 314. 15 La. 268. 17 La. 525. The Atchafalaya Bank and Sami. Thompson having made themselves parties to the concurso, by appearing at the meeting of the creditors and fixing themselves the terms of the sale of the property subjeet to their mortgage, must be considered as having waived their right to follow the property, and must look to its proceeds in the hands of the syndic whom they have chosen to make their agent.

We attach no importance and can give no effect to the act of confirmation executed before Marks. That act was evidently based upon the contemplated execution of the sale by Yorke and the others, at a price which suited the mortgage creditors. The purchasers having refused ■ to comply with their purchase, the consideration of the confirmatory act totally failed. In fact, the act intended to be ratified was never completed ; the ratification, therefore, became void, being without ah object. T. Slidell and Hoffman, for the appellants, Roselius, for the syndic.

It is, therefore, ordered that the judgment of the District Court be affirmed as regards the Atchafalaya Bank and Sami. Thompson, and reversed as regards Thomas Slidell ; and that the rule taken on him be discharged, with costs ; those of this appeal to be paid by the other appellants.