Viguerie v. Hall

Syllabus. A suit brought by the seized debtor, or his assignee, against the purchaser at a judicial sale io annul the sale, is not a petitory action, though plaintiff prays, as a consequence of a judgment in his favor, that he be decreed to be the owner of the property and placed in possession. There is no necessity for the petition in such a suit to specifically describe the property purchased, when allegations as to the suit and. the sale fix, unmistakably, its identity. There is no necessity for such an assignment tc be by authentic act, nor as against the purchaser at the sale to have been recorded. In a suit brought upon an assignment of a right of action evidenced by a writing in which the assignment is declared to have been made for “value received,” defendant cannot urge, upon an exception of no cause of action, that the instrument should have specifically set forth what the actual consideration was, and set forth all the details of the transaction. It is prima facie valid. Defendant is without legal interest to inquire into the precise character of the transfer, unles he can allege and show Injury. All he can exact Is full defense and protection. ”

APPEAL from the Nineteenth Judicial District, Parish of Iberia— Gammack, Judge ad hoc. The opinion of the court was delivered by Nici-iolls, C. J. Statement op the Case. The plaintiff having appealed from an exception of no right and no cause of action, it is necessary for a proper understanding of the case that the petition which was filed should be transcribed in full: “The plaintiff alleged that on the 11th of June, 1896, an order of seizure and sale was signed in the suit of Sealey vs. Hall, No. 2734 on the docket of the Nineteenth Judicial District Court of Iberia, under which the sheriff seized and sold certain property which he described, belonging to Mrs. F. C. Viguerie.” “That said property was duly advertised to be sold at the courthouse in the Parish of Iberia on the 25th day of July, 1896, it appearing by the advertisement that the whole of the property would be sold as a unit under said writ. That the aforesaid property was fully equipped as a sugar plantation with sugar house, machinery and apparatus for refining sugar, all of modern make and of good quality, and also with a large growing crop of.cane, corn and other plantation products, and a certain number of mules and plantation implements, all constituting together with the land, buildings and refinery, a complete sugar plantation, worth, with all its contents, not less than one hundred and fifty thousand dollars.” “That after the issuance of said writ and prior to the date of the aforesaid sale certain creditors claiming privileges on the sugar house and the acre of ground on which it stood, and upon the crop then growing upon said plantation, filed ex parte oppositions or interventions in the said executory proceedings, in which they asked for a separate appraisement of the sugar house and acre of land, and of the crop, and it was thereupon ordered, ea; parte, that a separate appraisement of said property be made, and that the sheriff hold the prorata proceedings from the sale thereof in his hands until the claims were adjudicated.” “That notwithstanding the orders for the sale of the whole of said property as a unit, and the advertisement in conformity with said order, and the ¡subsequent orders for a separate appraisement, as aforesaid, the said property was dismembered and offered for sale in parcels, the naked land being first, offered for sale, and adjudicated for the sum of forty thousand five hundred dollars to G. L. Hall, Mrs. Lillie W. Weeks, wife of G. L. Hall, and Miss Harriet Weeks, residents of the Parish of Iberia, in the proportion of one undivided half to G. L. Hall, and an undivided quarter to each of the other purchasers; after which the sugar house and the acre of land upon which it stood, and all fixtures, appliances and appurtenances therein contained, were offered separately and adjudicated to the same parties, in the same undivided proportions, for the sum of seven hundred dollars; and, thirdly, all the crops of cane, corn and other plantation products growing upon said property were offered and sold separately to the same parties for the sum of four hundred and sixty-nine 70-100 dollars; and, finally, the mules and implements attached to said plantation and forming part thereof were sold separately and adjudicated to the same above named parties.” “That Mrs. F. C. Viguerie, the defendant in execution, filed on the day of sale and placed in the hands of the sheriff, by whom the same was read aloud before the bidding began, a written protest against the' dismemberment of her property and the offering of same for sale as thus dismembered, to which no attention was paid; the sheriff proceeded with the sale of the property, as above recited, and in addition a yerbal protest was made in her behalf.” “That at the opening of the sale, a hid of fifty thousand dollars was offered for the whole property, the bidder being prepared to bid a much larger sum, which bid was rejected by the sheriff, who proceeded to the sale of the property in parcels, and adjudicated same as above recited.” “That the sale of the aforementioned property in parcels, as recited, was not only contrary to law, but was not authorized by any order of court. That such sale inflicted irreparable loss, as no competition was allowed, no hid entertained; and no bid oould possibly he entertained, for the whole of the property under the unauthorized and illegal proceeding of the sheriff, the sugar house and the crop having no value to any other bidders than those who had bought the land.” “That the sale as made was virtually preceded by no advertisement, no sale of the whole property as advertised having been made, and that no bids were given on said property when it was offered piecemeal, except the bids of the aforesaid adjudicatees.” “That the purchasers of the property were the immediate vendors of the defendant in execution, and they well knew that the offering and selling of the aforesaid property in parcels was in violation of the stipulations of the act of sale and mortgage.” “That said property which sale is inscribed in book X, folio 298, had been bought not long previously by Mrs. Yiguerie for one hundred thousand dollars, and had by her been improved by the expenditure of about thirty-five thousand dollars, in the sugar house, which was sold for seven hundred dollars; and, that after the adjudicatees at said sheriff’s sale went into possession of said properly they sold one hundred acres thereof, with the right to mine all salt on said island to the Myles Salt Company, Limited, a corporation organized under the laws of the State of Louisiana, and domiciled in the Parish of Iberia, Louisiana, of which E. E. Myles is president, for the sum of three hundred thousand dollars, of which land the said company is now in possession.” “That said company does not possess in good faith, having bought with full notice of the nullities recited above, all of which appear on the face of the papers relating to said sale.” “That the proceedings related above amounted to actual spoliation, and that the adjudicatees are likewise possessors in had faith, and that they with the said Myles Salt Company, Limited, owe rents, profits and revenues from the dates of their respective possessions; that the adjudicatees owe in the proportion in which they bought, as stated above, rents, profits and revenues from the date of adjudication, and that the third possessor owes rents, profits and revenues from the day of its purchase of the aforesaid property, which was on the 10th day of May, eighteen hundred and ninety-eight.” “That the rents, profits and revenues due by the original adjudicatees amount to ten thousand dollars per annum, and by the third possessor to thirty thousand dollars per annum, from the date of its purchase. Petitioner is the transferree and subrogee for a valuable consideration of all the rights and rights of action possessed and held by the defendant in execution, Mrs. T. C. Yiguerie, on the day of the sale and since, and appears in this proceeding in his- own behalf.” “That prior to the institution of this suit, he offered to pay to the adjudicatees the price paid by them to the sheriff under the sale as herein attacked as illegal, and made a formal tender thereof to them, and demanded that the property acquired by them be retransferred lo him in consideration of the said offer and of the said tender, but they refused, all in the presence of witnesses.” The Myles Salt Company excepted that the plaintiff’s petition disclosed no cause of action and no right of action in favor of the plaintiff, either against it or the other defendant. G. L. Hall, Mrs. G. L. Hall and Miss Harriet Weeks excepted to plaintiff’s petition on the ground of vagueness, for this: “That plaintiff, Edward A. Yiguerie, who claims the ownership of the property mentioned and described in his petition, and who demands to be placed in possession thereof, does not set forth with that certainty required by law, the nature, origin and description of his titles to said land, so as to apprise your appearers of the material facts and circumstances of his alleged ownership, and which are necessary to put them on their just defense, and to bar any subsequent investigation of the matters set forth in his pleadings, when they shall have been once decided.” “That he does not state in his petition who has suffered irreparable loss by the adjudication of that property, by the sheriff, whether it be himself personally, or some one else. Nor does he give the name of the person who made the alleged bid of $50,000.00. Nor does he stats whether that unknown person then and there protested against the adjudication of that property to appearers. Nor does he take the proper steps in due time to protect his alleged rights under said bid, all of which are facts material and necessary to be set forth with certainty in the pleadings to put appearers on their just defense.” “That he does not state what stipulations of the act of sale and mortgage on which were based the executory proceedings were violated by the offering and sale of the seized property, nor in what manner those stipulations were violated.” “Appearers allege that all these facts are material, and must be set forth explicitly to notify them of the nature and extent of plaintiff’s demand and pretensions of ownership, as well as the facts on which be relies to support and maintain his action, in order to permit appearers to prepare and file their proper defense.” “Therefore, appearing solely for the purposes of this exception, they pray that it be maintained ancTthat plaintiff’s action be dismissed with costs, and for all relief.” They next prayed for oyer of plaintiff’s muniment of title, as set forth in his petition, and that on failure to produce the same the suit be dismissed. On June 21st, 1901, the exceptions of no cause of action and no right of action and the plea of vagueness were referred to the merits, and the prayer for oyer was granted and plaintiff ordered to comply with said prayer within ten days, otherwise the suit would be dismissed. On June 28th, 1901, the plaintiff in obedience to the order of court filed the document on which he had declared. On July 11th, G. L. Hall, Mrs. G. L. Hall and Miss Harriet Weeks filed an exception of no right and no cause of action, and for that purpose averred that the document filed by the plaintiff in obedience to the 'order of the court to produce his muniment of title, is not a document which gives title to the land claimed, because, first, it is not a sale, as there is no mention of a price nor is it a document evidencing the sale of any specific piece of property, and much less that of Weeks’ Island, or Grand Cote plantation, as it contains the description of no land whatever, neither by boundary nor by number of acres. Nor is it a document of any value in law, inasmuch as it purports to be a private act which is not evidenced by any witness, and which has never been recorded and is still unrecorded in the Parish of Iberia, and which has never been acknowledged before any officer of the law authorized to receive such acknowledgment. Because said document purports to be merely a transfer of a right or cause of action to set aside, rescind and annul a judicial sale, an incorporeal right, which cannot by any means be construed as a sale of landed property on which to ground a petitory action, as is done in this case. Because said document not evidencing a sale, inasmuch as it contains no specifications of a price, cannot even be looked upon as an intended gift or donation, being an absolute nullity, not being made conformably to law and vesting in plaintiff no interest whatever in this matter. Plaintiff being therefore without interest, and having no muniment of title, is also without right to contest the adjudication made to movers and exceptors, as set forth by him in his pleadings. Exceptors and appearers further plead that plaintiff’s petition discloses no cause of action, because: 1st. He does not allege injury to himself. 2nd. Because there is not in his pleadings any offer on the part of plaintiff to warrant that the property adjudicated to appearers by the sheriff by the judicial sale which he assails, if resold, would bring a higher price than it did at the first sale. They therefore pray that their exceptions be maintained, and that plaintiff’s action be dismissed with costs. On trial, the exceptions of no right and no cause of action were sustained and the suit dismissed, and plaintiff appealed.