Parson v. Henry

A party whose property is seized under execution against him,, who is notified o£ such seizure, who appoints an appraiser who values the property, who resides in the parish in which the judgment is executed, who makes no opposition to the sale, and who subsequently surrenders possession of the property, is estopped from claiming the nullity of the sale of the property. Xeitlier is such party, were the sale valid, permitted to claim its proceeds on the ground that the judgment executed had been extinguished by payments prior to the seizure and sale. His commissions and omissions oust him from such complaints and claims.

APPEAL from the Eleventh District Court, Parish of Natchitoches-Pierson, J. Where the demands are brought in the alternative, plaintiff can not be compelled? to elect. 27 An. 98. The effect of a certain act as estoppel depends upon “the intent with which the act is done,” and the circumstances existing at the time. 31 An. 371-3. Under the prayer for general relief, judgment may be rendered on grounds not set up in the petition, if sustained by the evidence adduced without objection. 7 L. 46-51 and 2,152; 3 h. S. 480; 2 An. 588, 492; 5 An. 646; 11 M. 26, 297, 548; 12 M. 243;-9 M. 303; 3 ÍT. S. 300, etc. When defendant fails to testify to a fact peculiarly within his knowledge, if it exists, the presumption is against him that the fact does not exist. 33 An. 1073. In the absence of any agreement, payments are to be imputed to the debt the-debtor had most interest to discharge — the most onerous debt. O. C. 2166; 16-An. 294; 2An.816; 25 An.315; 15 An. 174,526; 24 An. 472; 31 An. 789. The imputation is made rather to the debt, for which the debtor has given secuz’ity than to that which he owes simply. 16 An. 375. The payment must be applied to the debt lawfully due, that is, the principal, no to the usurious interest. 22 An. 420. Parol testimony is admissible to show the real consideration of a contract evidenced by an authentic act, when not expressed therein. O. 0.1894,1900; 12 An.--736; 32 An. 432. While the price agreed on is of the essence of a contract of sale, it is not essential* that the price be stated in the act. O. 0.1894; 12 An. 124-6. An authentic act is full proof of the agreement contained in it, against the contracting pai*ties; and parol evidence shall not be admitted against or beyond its contents, nor on what was said before or at the time of its execution. O. O. 2236, 2276, 2238, 2422. As between the paz'ties, parol is not admissible topi’ove simulations; this can only be shown by a counter lettez*, or other written evidence. 29 An. 511; 35 An. 505;-3 An. 153; 18 An. 577; 10 An. 125; 4U. 167; 4 An. 487; 9 L. 566; 3 R. 457; 40 An. 157; 42 An. 522. A man can not be heard to deny his judicial declaration. 42 An. 522; 40 An. 157, etc. A person standing by is silent ‘while his own pz'operty is being sold and suffers another to become the purchaser, he is estopped from disputing the title thusacquiz’ed. 5 An. 367. A party who has pointed out property, is estopped from objecting to the action of ‘ the shez’iff in levying upon it. 13 An. 461. The plea that the plaintiff is estopped from contesting the validity of the sale-because he appointed an appraiser of the property sold, is valid. 27 An. 314. He can not be permitted to avoid the responsibility of that act by stating that he-did it under protest. Ibid. The price of the sale znust be certain, that is to say, fixed and determined by the* parties. O. 0.2464. 'Three circumstances concur to the perfection of the contract of sale, to-wit: the thing sola, the price and the consent. 21 An. 196; 24 An. 85. In this particular, there is no difference between the contract of sale and the-contraet of giving in payment. 21 An. 196; 24An. 85. Fraud is never presumed. He who alleges fraud must prove it.