1. Where an order directing the seizure and sale of lands in
Louisiana, whereon the vendor retained his lien and privilege, has
been made in a proceeding to enforce the payment of an installment
of the purchase money, and an appeal is taken, the surety on the
bond is liable for the claim sued on.
2. The pendency of proceedings on appeal does not render void an
order of another court of competent jurisdiction for the seizure
and sale of the lands to satisfy a subsequent installment, nor does
the payment of the first bond satisfy that given on appeal from the
second order.
3. The application of the proceeds of the sale under the first
order to satisfy, pursuant to its requirements, the several
installments
pro rata, does not discharge the surety from
the payment of the unpaid balance for which he was otherwise
liable.
On Dec. 31, 1863, Frellsen sold to Fairex a plantation in St.
Charles Parish, in the State of Louisiana, for the consideration of
$133,000, of which Fairex paid $3,000 in cash, and the residue he
agreed to pay in annual installments, bearing interest and falling
due respectively on the first day of May in every year for eleven
years. He executed and delivered to Frellsen his promissory notes
for the principal of these deferred payments, and also notes for
the interest to accrue thereon. In the authentic act by which
Frellsen conveyed the property to Fairex, he reserved his vendor's
privilege.
On May 19, 1869, Frellsen applied to the Seventh District Court
of the Parish of Orleans for an order of seizure and sale, to be
directed against the plantation to satisfy the two notes given for
the installment of the purchase money which fell due on May 1, 1869
-- one for $11,000 principal money and the other for $5,390
interest. The writ as prayed for was issued, but its execution was
suspended by an appeal taken by Fairex to the Supreme Court. The
bond for the appeal was in the penalty of $26,000, and Marchand was
the surety. The condition of the bond was as follows:
"Now the condition of the above obligation is such that the
above-bound Daniel Fairex shall prosecute this appeal and shall
satisfy whatever judgment
Page 105 U. S. 424
may be rendered against him, or that the same shall be satisfied
by the proceeds of the sale of his estate, real or personal, if he
be cast in the appeal; otherwise, that the said Marchand, surety,
shall be liable in his place."
The Supreme Court affirmed the order of the Seventh District
Court directing the writ of seizure and sale to issue, and gave
judgment against Fairex for ten percent on the amount of the two
notes which were the basis of the writ of seizure and sale on
account of his frivolous appeal.
While the appeal was pending, the two notes, one for $11,000
principal and the other for $4,620 interest, maturing May 1, 1870,
became due and were not paid. Thereupon, to satisfy them, Frellsen,
on May 18, 1870, obtained from the Fifth District Court for the
Parish of Orleans, on his petition, an order of seizure and sale
directed against the plantation. On May 26, 1870, Fairex appealed
to the Supreme Court from this order and gave bond with Marchand,
as surety, for the appeal in the penalty of $23,000. It was
conditioned precisely as that on the former appeal.
Fairex died Aug. 26, 1871, and the administratrix of his estate
was made party to the appeal in the Supreme Court.
On Jan. 19, 1874, the Supreme Court made the following decree
upon this appeal:
"The court therefore orders that the plaintiff and appellee
recover from the defendant five hundred dollars as damages for a
frivolous appeal, and that the appeal be dismissed at the costs of
the appellant."
While the appeal from the Fifth District Court was pending in
the Supreme Court, that court having affirmed the order of seizure
and sale made by the Seventh District Court, Frellsen, on Nov. 28,
1871, applied to the last-named court for an alias order of seizure
and sale, to satisfy the two notes which matured May 1, 1869, the
amount due on which was $16,390. The court directed the writ to
issue, and by virtue of it the plantation was sold by the sheriff
to Frellsen, the original vendor, for $40,000. This sum, by order
of the court, was applied
pro rata on all the notes for
the purchase money of the plantation remaining unpaid. After the
notes which were the basis of the proceedings in the Fifth District
Court were thus credited, there remained due thereon $8,595, and
after
Page 105 U. S. 425
the credit was applied to the notes which were proceeded on in
the Seventh District Court, there remained due thereon $13,342.
On May 21, 1872, a rule was taken on Marchand in the Seventh
District Court to hold him liable upon the bond for the appeal
taken from that court. Judgment was demanded against him on the
bond for the balance, $13,342, due on the notes which had been
proceeded on in that court and for $1,639, the judgment for damages
for the frivolous appeal, rendered by the Supreme Court. Upon the
trial of this rule, the Seventh District Court entered judgment
against Marchand for $1,639, the damages for the frivolous appeal,
and for interest and costs, amounting to $1,900, and dismissed the
rule as to the residue of Frellsen's demand. Marchand paid, Dec. 3,
1873, the sum of $1,900, which he was condemned to pay, and it was
accepted by Frellsen in full satisfaction of the judgment rendered
as aforesaid.
After all these proceedings, on May 8, 1876, a rule in the Fifth
District Court was taken against Marchand by Frellsen, who alleged
that on the demand upon which he had obtained the order for seizure
and sale in that court, a balance of $8,595 was due, with interest
at the rate of eight percent per annum from Feb. 3, 1872; that the
property, subject to executory judgment, had been sold pursuant to
an order and judgment of the Seventh District Court; that Fairex
had no other property which could be found by the sheriff to
satisfy the demand; and that he was dead and his estate insolvent.
Marchand was required to show cause why he should not be condemned,
by reason of his suretyship on the bond for the appeal from the
order of seizure and sale made by that court, to pay that balance
with interest, and $500, the damages adjudged for a frivolous
appeal. This suit was removed by Marchand to the Circuit Court of
the United States for the District of Louisiana, where the rule was
made absolute and judgment rendered against him for $8,595, with
interest thereon, and also for the sum of $500, the above-mentioned
damages.
This writ of error is prosecuted by Marchand to review that
judgment.
Page 105 U. S. 426
MR. JUSTICE WOODS, after stating the case, delivered the opinion
of the Court.
The first contention of the plaintiff in error is that the court
below erred in the construction which it gave to the appeal bond
executed by him for the appeal taken from the order of the Fifth
District Court. He insists that the obligation which he thereby
assumed was to pay for the use and detention of the property
pending the appeal, just damages for delay, costs of suit, and
costs and interest on the appeal, and that he did not bind himself
to pay the debt to satisfy which the writ of seizure and sale had
been ordered.
We find no warrant for this construction of the bond in the
decisions of the Supreme Court of Louisiana, which interpret the
articles of the code by virtue of which the bond was exacted.
Bonds for appeal from an order directing a writ of seizure and
sale are given by virtue of the provisions of articles 575 and 579
of the Louisiana Code of Practice.
Alley v. Hawthorn, 1
La.Ann. 122;
Cottman v. Ratliff, 20
id. 179;
State ex Rel. Bankhead v. Judge of the Fourth District
Court, 22
id. 116.
These articles are as follows:
"ART. 575. If the appeal has been taken within ten days, not
including Sundays, after the judgment has been notified to the
party cast in the suit, when such notice is required by law to be
given, it shall stay execution and all other proceedings until
definitive judgment be rendered on the appeal,
provided
the appellant gives his obligation with good and solvent security
residing within the jurisdiction of the court in favor of the clerk
of the court rendering the judgment for a sum exceeding by one-half
the amount for which the judgment was given, if the same be for a
specific sum, as security for the payment of the amount of such
judgment, in case the same is affirmed by the court to which the
appeal is taken. . . ."
"ART. 579. In the appeal bond it must be set forth in substance
that it is given as security that the appellant shall prosecute his
appeal,
Page 105 U. S. 427
and that he shall satisfy whatever judgment may be rendered
against him or that the same shall be satisfied by the proceeds of
the sale of his estate, real or personal, if he be cast in his
appeal, otherwise that the surety shall be liable in his
place."
It is evident from an inspection of the bond which is the basis
of this suit that it was given under these articles.
The authentic act whereby Frellsen conveyed the plantation to
Fairex and the latter agreed that the plantation should be subject
to the vendor's lien for the payment of the notes given for the
purchase money imported a confession of judgment in favor of
Frellsen by Fairex for the amount of said notes respectively as
they severally fell due. When, therefore, Fairex, the mortgagor,
appealed from an order of the court directing a writ of seizure and
sale to satisfy such of the notes as were then due and unpaid, he
suspended the execution of a judgment against him, and the surety
on the appeal bond became bound for the debt. That such is the
effect of the bond for appeal in cases of this class has been
repeatedly decided by the Supreme Court of Louisiana.
In
Whann v. Irwin, 27 La.Ann. 706, that court said:
"It is contended that the proceeding against the surety was
premature, as only the property mortgaged had been sold under the
writ, and no execution had been issued against the judgment debtor,
and returned
nulla bona. If this proposition be correct,
to require a bond for an appeal from an order of seizure and sale
is an idle form."
"Article 575 of the Code of Practice and article 37 of the
Revised Statutes of 1871 justify the mode of proceeding in this
case. The only execution which it was possible for the judgment
creditor to cause to be issued was issued and returned not
satisfied. The requirements of the law were substantially complied
with. The surety knew that under the executory process, no other
property could be sold except that which was included in the
mortgage, and when he stopped that by signing the appeal bond, he
obligated himself to pay the amount of the judgment for which the
writ had issued if affirmed on appeal."
"By reason of the nature of the judgment, no execution could be
taken out after the return of the order of seizure and
Page 105 U. S. 428
sale which could reach the property of the debtor, and therefore
the plaintiff had the right to proceed against the surety on the
appeal bond. A different interpretation of the law would make of
judicial suretyship a mere farce, the commencement, rather than the
end, of litigation."
The rule thus laid down was reaffirmed in the case of
Landry
v. Victor, 30 La.Ann., Part 2, 1041.
So in
Thompson v. Grow, not reported, it was held that
the surety on a bond given for a suspensive appeal from an order of
seizure and sale is liable for the amount of the mortgage claim
sued on.
See Louque's Digest, title Appeal, III. e. 4, p.
39. We have been able to find no conflicting decisions.
This interpretation of the local law and of the construction of
bonds executed pursuant to its provisions is binding on this court,
and leaves no ground for the contention now under consideration to
stand on.
It is next insisted by the plaintiff in error that all the
proceedings in the Fifth District Court, in which the bond sued on
in this case was given, were absolutely void, and therefore that
the bond was also void.
The reason for this contention is stated to be that, Frellsen
having begun his proceedings for seizure and sale in the Seventh
District Court on the notes which matured May 1, 1869, the
institution of a similar proceeding on other notes of the same
series, subsequently falling due, in the Fifth District Court, was
an illegal and oppressive act. It is asserted that
"All the proceedings in the Seventh District Court were regular
and legal, whilst all those in the Fifth District Court were null
and void on account of the error produced in the minds of the
judges of the Supreme Court and the Fifth District Court by the
action of Frellsen in withholding from them knowledge of the
pendency of the suit in the Seventh District Court."
It is not disputed that the subject matter of the proceedings in
the Fifth District Court was within its jurisdiction, and that the
parties were before it. Its proceedings therefore, however
erroneous, cannot be null and void. In passing upon this point it
is only necessary to apply the rule laid down by this Court as an
axiom of the law that the validity of a judgment cannot be
questioned collaterally for errors which do not affect
Page 105 U. S. 429
the jurisdiction of the court which rendered it.
Cooper v.
Reynolds, 10 Wall. 308.
The complaint seems to be this: that in the proceeding in the
Fifth District Court, Frellsen, on whose appeal bond Marchand
became surety, had a good defense against the order or judgment
rendered in that case if he had only taken the trouble to make it.
But the fact that he did not make it, and that his antagonist did
not make it for him, does not render the judgment void, the court
having unquestioned jurisdiction to make orders for seizure and
sale and the mortgagor being present in court to resist it.
It is further insisted that the payment by Marchand of the
judgment for $1,900, rendered against him by the Seventh District
Court upon the appeal bond given for the appeal from the order of
that court, is also a satisfaction of any claim on the appeal bond
signed by him in the Fifth District Court for the appeal from the
order of that court allowing the writ of seizure and sale for the
satisfaction of other notes of Fairex.
If, as decided by the Supreme Court of Louisiana, the appeal
bond in such cases is a security for the payment of the notes on
which the application for the order of seizure and sale is based,
it is plain that the satisfaction of a bond for an appeal on one
note cannot be a satisfaction of another bond for another appeal on
a different note. Each note is a separate cause of action, and the
satisfaction of one does not necessarily imply the satisfaction of
another.
Lastly, article 3061 of the code of 1870 is relied on for a
reversal of the judgment below.
That article declares,
"The security is discharged when, by the act of the creditor,
the subrogation to his rights, mortgages, and privileges can no
longer be operated in favor of the surety."
The defense founded on this article is thus set forth in the
answer filed by Marchand to the rule taken on him in the Fifth
District Court:
"Said plaintiff has by his acts made it impossible and placed it
beyond the power of respondent to satisfy the alleged order of
seizure and sale herein, or the alleged decree on appeal therefrom;
that said plaintiff, without respondent's consent, has, by his said
acts, impaired respondent's
Page 105 U. S. 430
rights to subrogation, and respondent is thereby released from
any liability, if any existed, which is denied."
It is sufficient to say in reply to this contention that the
mortgage to which Marchand claims the right of subrogation has been
enforced, and the proceeds of the mortgaged property applied
pro rata to the satisfaction of the claim for which he is
surety. If he had been actually subrogated to the rights of
Frellsen under the mortgage, he could have secured nothing more. He
has not been injured. He has lost nothing by the foreclosure of the
mortgage. It has resulted to his advantage in the reduction of the
debt for which he is surety, and is no ground for his discharge
from the unpaid balance.
Judgment affirmed.
