M'DONOUGH vs. GRAVIER'S CURATOR, 9 La. 531

Mathews, J., delivered the opinion of the court. , This suit is brought by the plaintiff, to prevent the defendant from proceeding to sell certain property which he had caused to be inventoried and advertised for sale, as curator of the estate of John Gravier, deceased; and to recover damages from the defendant on account of his acts, by which an attempt is made to sell property which the plaintiff alleges to belong to him.

The answer contains a denial of any right or title in the claimant, and allegations that the pretended sheriff’s sale under which he claims, is null and void; and prays that it may be rescinded, &c. Judgment being rendered in favor of the defendant^ the plaintiff appealed. The facts of the case, as established by the evidence, show, that Gravier, the intestate, who was the owner of the land in the rear-of the faubourg St.

Mary, laid out a part of it into squares and lots for .buildings, intending them to be annexed as city property to the faubourg which had been . previously established in front, &c.; that .during his lifetime , he sold many of those squares and lots to different persons, in conformity with a plan which he had caused to be made.

This plan being considered imperfect, as not designating-with precision the various parcels of ground sold to the different purchasers, underwent changes by the consent of these parties mutually given, until a plan was finally made and adopted in 1831; in which the defendant acquiesces, as shown by his answer. Gravier was indebted in large sums to judgment creditors, whose claims were not fully satisfied, and on the 13th day of March, 1830, at which time an execution issued against his property on one of those judgments.

Under this writ the shei'iff seized, as appears by his return, which is uncontra-dieted, “ the right, title and interest of John G-ravier to the lands lying between St. Paul and Bertrand streets, in the city of New-Orieans, and sold on the 15th day of April, 1830, to John M'Donough, for the sum of ninety dollars: deduct costs of court and sheriff’s fees thirty-three dollars and fifty cents : balance of fifty-six dollars and fifty cents, paid to plaintiflj as per receipt book. Returned the 17th of May, 1830. G. W.

Morgan, sheriff.” •Where the saie^undei' exe-cation shows a judgment, writ of execution, and to them,1 by tlie proper oiheer, all previous proceed-tef,S areÜpreai-mod to have been correctly made, that is, in formalities' re-Tiii^presumption is omniarec-like all other yi'eki's'to^contra-ry proof. In addition to this return, made by the sheriff, a deed from that officer is produced in evidence, dated on the 30th April, 1830, reciting the sale as having been made on the 19th of that month.

It is seen from the recital of these acts and their dates, that the plaintiff bought the premises in dispute previous to the adoption of the plan of 1831. The validity of this sale is attacked, on the ground of omissions on the part of the sheriff to fulfil the formalities required by law in the forced alienation of property .under judgment and execution. Another cause of nullity is alleged by the defendant, said to result from the concealment and ff'aud of the plaintiff, in procuring the seizure and sale of G-ravier’s property.

But the opinion which we have formed ", ..... on the alleged mlormahties in the sale, renders it unnecessary examine this point. We consider it now as an’established doctrine of our juris- .... . , prudence, in relation to sales under execution, that when a purchaser shows a judgment and writ of execution and sale h¡m under them, made by the proper officer, all previous 7 J 11 7 1 proceedings by the latter are presumed to have been correctly made; that is, in relation to the formalities required by law, ^ presumption is omnia rede acta.

But this presumption, like all others of facts, must yield to proof contrary"to it. The points of the defendant present two principal grounds 0j? millity in the sheriff’s sale to the plaintiff, arising out of (fie omissions and misconduct of that officer: 1st. A want of proper description of the property seized ; and, 2d. Neglect to advertise it in the manner and during the length of time required by law.

Before examining the evidence in support of these points, and applying the law to them, it is proper to premise that we have always adopted as a maxim, that in forced alienations of property, all formalities required by law must be strictly fulfilled to give validity to such alienations. From the adoption of this maxim it follows, that all persons having an interest to have such alienations annulled, may claim judicially a rescission of the sales by which they are made. In forced alienations of property, all the formalities required by law must be strictly fulfilled, to give validity to the sale.

Personshaving an interest to cause the alienation of property at sheriff’s or other forced sale to be anmdled, for want of the legal formalities in making it, may claim judicially the rescission of such sale. In forced alienations, the property must be described with minuteness and accuracy, so that it can be appraised with such minuteness as to ascertain its value, and be sold together or- separately to the best advantage.

The description of the property seized in the present instance, viewed in the light of city property, laid out into squares and lots, is truly vague and indefinite, and the evidence shows, that neither the sheriff or the appraisers could possibly have had any knowledge of its extent or value. It is true, that the. Code of Practice does not point out in express terms, the-specific manner in which property seized in execution shall be-described.

But certainly, a description so totally void of precision as not to enable the appraisers to find the property which they are called on to estimate, or in any other manner to give a clue to its value, would be contrary to the provisions of our laws, intended to protect unfortunate debtors against all useless severity, by which their property might be takeu from them, under color of law, at a cruel sacrifice of their interest, by a forced sale of it, indefinitely below its value.

Although the mode of proceeding in seizures and sales under execution, in relation to a description of the property seized, is not expressly directed by the code, yet it results from irresistible implication derived from the articles 676 and 702, that property thus seized must be described much more specifically, and with considerable and much greater precision, and certainly more than was done in the present instance. The first

article cited provides, that “slaves must be appraised either by the head or by families, and other effects must be appraised with such minuteness that they maybe sold together or separately to the best advantage of the debtor, as he may direct. All property seized in execution must be appraised; and we find the law imperative that it must be so appraised, when made up of different and distinct parcels, that they may be sold together or separately, at the option of the debtor. So, where a sheriff seized properly in execution, and described it as “ land lying between St.

Paul and Bertrand-streets, in the city of New- Orleans,” and the evidence showed that the ground between these streets had previously been laid off into lots and squares : Held, that this description was insufficient, and that the sale under it gave no title’to the purchaser. According* to the

article 702, of the Code of Practice, the sheriff is required to specify the object seized and sold, which must be done in the return on his writ, so as to distinguish and specify one object from another. The sheriff returns in the present instance, that, he seized property in the city of New-Orleans, and other evidence in the cause shows that a considerable part, if not all the land seized, was, previous to the seizure, laid out in squares and lots, bounded by certain named streets. He does not, however, specify any of those squares or lots, and consequently put it out of his power, and that of the appraisers, to comply with the requisites of the

article of the Code of Practice, now being interpreted. According to the

article 702, the sheriff'is obliged to specify the object seized and sold ; and this must be done in his return on the writ. If he seizes more than one object, according to the spirit of

article 678, he must specify each and every one seized. The seizure made in this case was really of many distinct objects, if one square or lot in a town may be distinguished from another, either as to locality or in point of value, a proposition which we presume will not be denied. The adjudged ca'ses cited on the part of the defendant, in support of the point which has now been investigated, are not precisely similar to the present, but have a very evident analogy. See 1 Louisiana Reports, 43. 4 Peters, 362. 7 Louisiana Reports, 409, and 1 Ibid., 491.

But supposing our reasoning on this point to be feeble and inconclusive, which we are by no means ready to admit, still the second point which we purpose to discuss, does in our view, incontrovertibly support the ground assumed by the defendant; that is, that the sheriff omitted or neglected to advertise the property seized, the full length of time prescribed by law. Being real estate, he was bound to advertise it, in both the English and French languages, for the space of thirty days before the sale.

We have already transcribed the return of the officer on the writ of execution, in which he states that the property seized was sold on the 15th of April 1830. This return we stated to be uncontradicted, and we hold this opinion notwithstanding the discrepancy of dates between the sheriff’s deed and his return; considering the sale and return into court as the real evidence of title in the plai’ntiff, if any he has, and superior to that of the act of sale, which it must control, in the event of disagreement between the adjudication and the sheriff’s deed.

The latter is a matter entirely between the officer and the purchaser, the former a solemn and indispensable performance of duty, and addressed directly to the court in which it should become a record hot to be contradicted by any thing dehors. In support of this opinion, see

article 695 of the Code of Practice, wherein it is positively declared that the act of sale adds nothing to the force and effect of the adjudication, &c. If we take the 16th March as the com- * . . mencement or the advertisements, (the property having been seized on the 13th) and the day of adjudication to be the 15th of April, according to the sheriff’s return, thirty days did not elapse between the advertisement and the day of sale, unless both those days be included in the calculation, which is contrary to established practice in such cases, and which gives way only to positive law. The expressions in the

article 670 of the Code of Practice, do not impugn this usual mode of calculation which would exclude either the day of sale or the day when the advertisement commenced. For it declares that sales of immoveables shall take place only after a notice by advertisement of thirty days. After thirty days, cannot mean within that period, which would take place in the present instance if both the days of advertising and sale be included in the calculation of time. The law, however, requires property situated in the place where this was when seized by the sheriff, to be advertised both in the English and French languages.

The advertisement in French is however not shown to have had place in any newspaper or gazette published in the city before the 19th of March: consequently, the time of advertising required by law is greatly deficient, according to the view of the case which we have taken.

Rea] or im-moveable property, situated mustbeAdvertí-’ s®de”sül'Uie'(j1s‘ English and ges^fo/TiHrty ^ day Wientól advertisement th'Tda^of tale, ciear^days^may elapse ijeíween. formality is 'a fpthe'saie™111" But it is contended that the neglect and omissions of the sheriff in the performance of his duties ought not to prejudice the plaintiff, who is stated to be a purchaser in good faith ; and that the causes of nullity relied on by the defendant are not supported by the general principles of our jurisprudence. .In support of the doctrine thus assumed, we are referred to the commentary of Toullier on the civil-law of France, particularly, to certain numbers or articles found in the 7th volume of this work under the head of extinction of obligations, from No. 479 to 603.

We have attentively examined the authority thus cited, not without pleasure, derived from the force and perspicuity of the reasoning of the author, wherever he treats of the nullities of contracts. He divides the subject into acts done contrary to law, and omissions to pursue formalities required by its provisions. This last branch of the subject is examined according to the distinction made by the doctors of the civil law, between' substantial and accidental formalities.

The first general rule in relation to them is, that when the formality prescribed is founded on natural equity, it is said to be substantial, and its omission carries with it nullity of the act. The author criti-cises this rule in relation to voluntary and consensual contracts, and perhaps the exceptions to its validity which he imagines, would not apply to judicial proceedings, under which forced alienations of property take place.

It is, however, in our opinion, of the essence of justice and natural equity, that when a forced sale of a debtor’s property is made under legal proceedings, that it should not be sacrificed for less than its value, or at least that portion of it intended to be secured by a fair appraisement. In this case, the pretended appraisement appears to us to have been a mere mockery of justice, as neither the officer who seized, or the appraisers, had any means of knowing or finding out the value of the property to be appreciated.

Should we admit the full force of Toullier’s reasoning on the subject of nullities, still exceptions to the rules which he thinks ought to be established would result (it is believed) from the texts of our codes, and from the leading principles of our jurisprudence. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.