An averment in a bill, filed by the curator of an interdict in
Louisiana to have a contract declared null and void, that at the
time of making it the interdict was losing, and to a great extent
had lost, his capacity to attend to business and to manage his
affairs, and that his mind was seriously impaired so as to affect
his understanding and judgment, and so continued until he was
judicially interdicted, does not meet the requirements of the Civil
Code of that state, and does not entitle the plaintiff to relief
upon the ground that the interdict was then incapable in law of
making a binding agreement.
In Louisiana, a judgment debtor can waive or renounce the right
to have property, which is taken on execution to satisfy the
judgment, appraised.
The right of appraisement of property taken on execution is
given in Louisiana to the owner, and, if waived by him, his
creditors cannot complain unless the waiver was made fraudulently
and to defeat their debts.
When a mortgage in Louisiana stipulates for a sale, on
forfeiture, without appraisement, and the petition for executory
process prays for such a sale, and the order is "let executory
process issue herein as prayed for and according to law," it
imports a sale without appraisement.
When a plantation in Louisiana and its fixtures are to be sold
under a mortgage, the sale must be made at the seat of justice
unless the debtor, within the time after the seizure prescribed by
law, requires it to be made on the plantation.
In Louisiana, when a plantation and the personal property upon
it are mortgaged together by one mortgage, they may be sold
together as an entirety.
In Louisiana, mere informalities or irregularities in a judicial
sale do not constitute a sufficient ground for setting it
aside.
The case, as stated by the Court, was as follows:
This suit was instituted January 27, 1886, in the name of Edward
F. Stockmeyer, an interdict and a subject of the German
Page 139 U. S. 177
empire, residing in New Orleans, by his curator, Carl
Stockmeyer, a subject of the same empire, residing in that city,
against Charles P. McCan, Henry Godberry, George Godberry, Laura
Godberry, Noelie Godberry, and Edward F. Le Bourgeois, citizens of
Louisiana. Upon final hearing, the bill was dismissed, with
costs.
Its principal object is to obtain a decree setting aside and
declaring of no effect a sale and adjudication in the year 1885 to
Charles P. McCan of a certain plantation in Louisiana, with all the
buildings, improvements, and houses thereon and sundry articles of
personal property used in its cultivation, and establishing the
rights and interests secured to Edward F. Stockmeyer by certain
pledges made by public acts in the years 1881 and 1884. A further
object is a decree declaring McCan a trustee in respect to the
moneys realized by him from the sale of property taken possession
of under the above adjudication.
The grounds upon which the above relief is sought will appear
from the following summary of the pleadings and evidence:
On the 7th of February, 1881, by public act before a notary, the
defendants Laura Godberry and Noelie Godberry pledged to
Stockmeyer, his heirs and assigns, two promissory notes made by
Henry Godberry and George Godberry to their own order, and by them
endorsed, dated February 20, 1880, each for the sum of $8,750,
payable one year after date, with interest at the rate of six
percent per annum from date until paid, with privilege to the
makers of extending the notes from year to year upon payment of
interest. These notes were secured by mortgage and vendor's
privilege, given February 20, 1880, on a sugar plantation known as
the "Angelina Plantation" in the Parish of St. John the Baptist,
State of Louisiana, about forty-eight miles above the City of New
Orleans on the Mississippi River.
On the 25th of January, 1884, Laura Godberry and Noelie
Godberry, by public act and for the purpose of securing an
indebtedness from Henry and George Godberry in the sum of $32,000,
with interest at eight percent per annum from February
Page 139 U. S. 178
24, 1884, until paid, and attorney's fees at five percent on the
amount sued for, pledged to said Stockmeyer the above two
promissory notes. By this act it was agreed between Laura and
Noelie Godberry and Stockmeyer that in the event Henry and George
Godberry failed to pay this indebtedness, with interest and costs,
on or before January 25, 1885, Stockmeyer, his heirs and assigns,
might take such legal proceedings as were deemed necessary to
enforce the payment of the notes pledged, and appropriate the
proceeds of sale to the payment of any amount due him on account of
the Angelina Plantation. The interest was paid to February 21,
1884, and payment of the notes was postponed to January 25, 1885.
The land and property embraced in this special mortgage and
vendor's privilege was the Angelina Plantation, with the buildings,
improvements, machinery, engines, apparatus, carts, wagons, tools,
implements of husbandry, mules and other livestock, corn, fodder,
growing crops, and everything, without exception or reservation,
belonging or appertaining to that plantation.
On the same day of the last-named act, January 25, 1884, by
public act, to which Henry Godberry, George Godberry, Laura
Godberry, Noelie Godberry, Edward F. Stockmeyer, and Charles P.
McCan were parties, certain notes for $25,000, made
in
solido by Henry Godberry and George Godberry to their own
order and by them endorsed, divided into sums of $5,000 each, and
payable at the New Orleans National Bank on the 15th, 20th, and
27th days of December, 1884, and on the 5th and 15th days of
January, 1885, respectively, with interest at six percent per annum
after maturity, were secured by special mortgage and crop lien on
the Angelina Plantation and the personal property belonging
thereto, as an entirety, in favor of McCan. This mortgage, by its
terms, was made superior to the one of the same date securing the
indebtedness of Henry and George Godberry to Stockmeyer, as well as
to that of February 20, 1880, securing the two notes of $8,750
each, held by the Misses Godberry.
Subsequently, by a decree passed November 11, 1884, in the Civil
District Court of the Parish of New Orleans, Stockmeyer was
adjudged to be incompetent to perform validly any
Page 139 U. S. 179
act that could be performed by a person of sane mind. He was
accordingly interdicted, and Carl Stockmeyer was appointed and
qualified as his curator.
Upon default in the payment of one or more of these notes,
McCan, the holder and owner of them, proceeded, February 25, 1886,
by executory process in the Twenty-Sixth Judicial District Court,
Parish of St. John the Baptist, in suit No. 197 on the docket of
that court, in which Henry Godberry and George Godberry were sole
defendants, to seize the tract of land or plantation, together with
all the personal property covered by the special mortgage to him,
and attached to and used in the cultivation of such plantation. At
the sale ordered in that suit, which took place on the 7th of
March, 1885 at the seat of justice of the parish, the plantation,
with the personal property covered by the special mortgage and crop
lien, and used in its cultivation, was adjudicated to Charles P.
McCan for the price of $15,000 cash, and a deed was made to him by
the sheriff. Under that deed, he entered into possession and sold
the mules and machinery in the sugar house on the plantation for a
sum approximating $10,000. He subsequently leased the plantation
for the year 1885 to Edward Le Bourgeois for the sum of $5,000,
which sum he collected. He again leased it to Le Bourgeois for two
years from January 1, 1886, for $10,000, and the latter, at the
beginning of this suit, was in possession as lessee and tenant
under McCan, whose title rested entirely on the above adjudication
and deed to him.
Before the sale to McCan was made, the defendants in suit No.
197 presented to the judge of the Twenty-Second Judicial District
of Louisiana a petition protesting against the sale of the personal
property in block or in lump at the courthouse, and demanding that
it be appraised and sold separately on the plantation. This
petition was accompanied by an affidavit of counsel, stating that
the office of judge of the Twenty-Sixth Judicial District Court of
Louisiana was vacant; that there was no judge in that district or
parish to act in said office, and that the judge of the adjoining
district -- the twenty-second -- was authorized in that event to
act. Thereupon the latter
Page 139 U. S. 180
judge made at chambers, on the 4th of March, 1885, the following
order:
"Upon reading the foregoing petition and considering articles
666 and 676 of the Code of Practice, let the Sheriff of the Parish
of St. John the Baptist be, and he is hereby, directed and
instructed to sell the property described in the foregoing petition
in the order and manner therein set forth, and let the same be sold
separately and appraised separately, as above set forth and prayed
in said petition, the plantation to be sold first at the
courthouse, and the other articles on the plantation, as above
prayed for."
This petition, with the accompanying affidavit and the above
order, were filed in the suit, and of the order the sheriff was
notified on the 5th of March, 1885. In addition, the curator of
Stockmeyer, by a writing filed March 6, 1885, in said suit No. 197,
protested against the sale of the property without the benefit of
appraisement as prescribed by law, and in the mode claimed by Henry
and George Godberry. Nevertheless the property was sold at the
courthouse door, in block, without appraisement, by reason whereof
it is alleged the sale did not realize a fair value, persons who
would have been present and bid for the property being prevented
from attending on account of the mode in which the sale was
conducted. The act of special mortgage and crop lien of January 25,
1884, by Henry Godberry and George Godberry for the benefit of
McCan, contained, among others, provisions dispensing with the
appraisement of the property enumerated in the event of seizure and
sale; waiving all delays, appeals, writs of error, and right of
appeal; authorizing the holder of the notes to enter judgment in
any court of competent jurisdiction, without citation or previous
notice, on a production of an authentic copy of the act for the
whole or part of said debts, attorneys' fees, costs, charges,
expenses, etc., provided execution was stayed until the maturity of
the notes sued on; in case a forced sale became necessary from any
cause, waiving and acknowledging legal service of notice to pay,
notice of seizure, and notice to appoint an appraiser and to
subdivide, as well as all legal delays; consenting to the immediate
execution of any judgment entered; promising that no injunction or
process of law
Page 139 U. S. 181
tending to delay a sale should be resorted to by them or by
anyone holding under them, such right or privilege being expressly
renounced; consenting that all laws of the state pertaining to
privileges for supplies furnished or money advanced and used in the
purchase of necessary supplies, and in the payment of necessary
expenses, laborers, etc., to carry on a farm or plantation should
have full force and effect, and obligating themselves to ship and
consign to the mortgagee the entire crop of sugar and molasses made
and gathered on the Angelina Plantation during the year 1884, or
his representative and assigns could at once sequester the crops or
the proceeds thereof in whosesoever hands the same might be,
regardless of any sale or transfer thereof, and ship the same, if
in kind, to McCan, who was empowered to sell them at the current
market prices and hold the net proceeds in lieu of the property
sequestered.
These stipulations in the special act of mortgage and crop lien
were alleged to be illegal, and not binding upon Henry and George
Godberry or through them upon any creditor or junior mortgagee,
particularly the plaintiff or said interdict, even if the latter
was adjudged to have lawfully signed it, which the plaintiff
denied.
The bill avers that the defendants Laura and Noelie Godberry at
the date of the above act, January 25, 1884, were not the holders
and owners of the two promissory notes for $8,750 each, but that
they had been pledged to Stockmeyer, first by the act of February
7, 1881, and again by the Act of January 25, 1884, and that he held
a special property in them to secure his debt; that the special act
of mortgage and crop lien of the latter date was not intended to
subordinate the pledge of Stockmeyer to the claim and notes of
McCan, and could not properly be so interpreted; that there was no
consideration for Stockmeyer to subordinate his right of pledge to
the special mortgage and crop lien of McCan; that at that time,
January 25, 1884, Stockmeyer
"was losing, and to a large extent had lost, his capacity to
attend to business and to manage his affairs; that his mind was
seriously impaired so as to affect his understanding and judgment,
and he so continued until in
Page 139 U. S. 182
the month of November, 1884,"
on the 11th day of which month he "was judicially interdicted,
but on or about the 20th day of February, 1884, previous thereto,
was placed in an asylum;" that
"said act was not the expression of a sound mind, and is illegal
and void, and not binding on Stockmeyer, his heirs or assigns, and
that the proceeding to seize and sell the property therein
enumerated was illegal, void, and of no effect"
as to his rights or the rights of his curator; that if the
special mortgage be illegal and void as against him, the pledges,
one or both, made by Laura Godberry and Noelie Godberry on the 7th
of February, 1881, and January 25, 1884, were subsisting pledges
and first mortgages and privileges on said property, and that the
debts due to Stockmeyer should be first paid from the proceeds of
the sale of the property pledged.
The prayer of the bill is that the sale and adjudication of the
Angelina Plantation, as well as said act of special mortgage and
crop lien in favor of McCan, be cancelled and declared null and
void; that the pledges, by the Act of February 7, 1881, and January
25, 1884, be recognized and established, and the property so
pledged be sold; that the debts due Stockmeyer from Henry and
George Godberry be ascertained; that McCan be adjudged to be a
trustee for the moneys realized by him from the sale and
adjudication of March 7, 1885, and that such further relief be
granted as the nature of the case requires.
The answer of McCan proceeds upon these grounds: that the two
acts of January 25, 1884, were executed at the same time, and for a
common purpose; that prior to that date, Stockmeyer made advances
to the amount of $32,000 to Henry and George Godberry to enable
them to carry on the Angelina Plantation; that said debtors, being
unable to repay said sum, and there being no prospect of their
being able to do so unless the sum necessary was made out of future
crops, applied to defendant some days before January 25, 1884, for
a loan of $25,000 to be used in purchasing supplies for that year,
and to be secured by a first mortgage; that Stockmeyer knew of and
approved of that application, for he intervened
Page 139 U. S. 183
in the act of special mortgage and crop lien, without
solicitation from the defendant, and bound himself to the
stipulations contained in it; that defendant refused to make the
loan unless the holders and owners of the two notes of $8,750 each,
which were outstanding and secured by first mortgage on the
plantation, would consent to give his mortgage priority over them;
that by said stipulation the plaintiff postponed his rights of
mortgage in favor of the defendant; that the protest and petition
filed by the curator in case No. 197 shows that Stockmeyer became a
party to the act of mortgage and crop lien for the purpose of
waiving his claim as holder of said two notes; that prior to as
well as on the 25th of January, 1884, he was engaged in and
transacted business in New Orleans, apparently in the full
enjoyment and use of all his mental faculties, and defendant had no
reason to believe that they were in any degree impaired by insanity
or from any other cause; that the defendant has no knowledge or
information as to his having lost his capacity to attend to
business and manage his affairs, or as to whether his mind was
seriously impaired so as to affect his understanding and judgment;
that defendant was not intimate with him, having had only casual
intercourse with him, but from the fact of his attending to
business, he believed him to be in his right mind when the mortgage
and crop lien were executed; that on or about September 27, 1884,
his curator agreed and consented to defendant's making further
advances to the plantation over and above the $25,000 secured by
the special mortgage of January 25, 1884; that no infirmity of
intellect upon the part of Stockmeyer was suggested by the curator
in the petition and protest filed to prevent the sale of the
mortgaged property, and that if the curator had given notice of his
purpose to repudiate the stipulation in the act of special mortgage
on the grounds now urged, the defendant would not have made the
advances he did, nor would he have sold the property in dispute if
the claims now put forward had been made known to him.
The answer also alleges that the sale of the mortgaged property
by the sheriff under executory process was in all respects legal
and valid; that it was competent for the
Page 139 U. S. 184
mortgagors to make the waivers embodied in the mortgage, and,
the mortgage having been signed, he consented to its terms and
conditions, and is bound by them; that the mules and other personal
property covered by the special mortgage, and not sold on the
plantation, were used in the cultivation of the plantation, were
attached thereto, and were immovable by destination; that the
sheriff had advertised the same, together with the plantation of
which they formed a part, for sale, according to law at the seat of
justice of the parish; that the petition and protest of the
plaintiff, who was joined therein by Laura Godberry and Noelie
Godberry, were filed long after the seizure and date of the first
publication of the notices of sale, and was not a demand for a sale
of the seized property or any part thereof on the premises, but if
it be so construed, it was made after the right to the same had
expired, and not by the defendants in the writ, and the sheriff was
not bound to comply with any such notices; that it would have been
irregular and illegal to have sold a part of the property at a
place different from that named in the notice of sale; that the
protest was presented to the defendant on the day, and only a few
minutes before the time, advertised for the sale; that as the
plantation was on the opposite side of the river, ten miles from
the seat of justice, the plaintiff knew that compliance with the
protest was impossible; that the judge who granted the order
directing the sheriff to sell according to the terms of the protest
had no power to grant the same; that the petition upon which it was
granted did not pray for process against the sheriff or the
defendant, nor has any been issued or served, and the suit has not
been prosecuted in any manner to final judgment; that such order
decided nothing between the defendant and the complainant that
ought to affect the sale; that the plantation, mules, machinery,
and implements thereon constituted an estate complete for the
purpose of cultivating sugar cane and manufacturing its products,
and it was more valuable as a whole than it would have been if sold
separately in the manner set forth in the protest; that the amount
due him on the day of sale for advances was $20,707.39, with legal
interest from January 10, 1885, but that the property was sold
for
Page 139 U. S. 185
only $15,000, leaving a large balance due him, which remains
unpaid, together with accrued interest.
The defendant admits that he received from Le Bourgeois $4,000
for the rent of the property for the year 1885; that he has rented
for two years from January 1, 1886 at $5,000 per annum, and that he
has given Le Bourgeois the privilege of purchasing at the
expiration of his lease for $15,000 payable in installments. After
the answer was filed, both Edward F. Stockmeyer and McCan died, and
the suit was revived in the name of C. Stockmeyer, testamentary
executor of E. F. Stockmeyer, against the appellees, the widow and
children of McCan. Upon final hearing, the bill was dismissed with
costs.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The case will be considered in the two aspects in which it is
presented in behalf of the appellant. The first one is that at the
time Edward F. Stockmeyer entered into the agreement of the 25th
day of January, 1884, before the notary, he was in a condition of
great mental weakness; that there was gross inadequacy of
consideration for the mortgage, and that from these circumstances
imposition or undue influence ought to be inferred.
The bill does not allege that Stockmeyer was incapable in law of
executing the agreement in question. The averment that at the time
of making it he was losing, and to a great extent had lost, his
capacity to attend to business and to manage his affairs, and that
his mind was seriously impaired, so as to affect his understanding
and judgment, and so continued until he was judicially interdicted
by a judgment rendered November 11, 1884, does not meet the
requirements of the Civil Code of Louisiana. By that code it is
provided:
Page 139 U. S. 186
"Art. 401. All acts done by a person interdicted from the date
of the filing of the petition until the day when the same is
pronounced are null."
"Art. 402. No act anterior to the petition for interdiction
shall be annulled except when it shall be proved that the cause of
such interdiction notoriously existed at the time when the acts the
validity of which is contested were made or done, or that the party
who contracted with the interdicted person could not have been
deceived as to the situation of his mind. 'Notoriously' in this
article means that the cause of the interdiction was generally
known by the persons who saw and conversed with the party."
"Art. 403. After the death of a person, the validity of acts
done by him cannot be contested for cause of insanity unless his
interdiction was pronounced or petitioned for previous to the death
of such person, except in cases in which the mental alienation
manifested itself within ten days previous to the decease, or in
which the proof of want of reason results from the act itself which
is contested."
Other articles of the Code are as follows:
"Art. 1782. All persons have the capacity to contract, except
those whose incapacity is specially declared by law. These are
persons of insane mind, those who are interdicted, minors, and
married women."
"Art. 1783. All cases of incapacity are subject to the following
modifications and exceptions."
"Art. 1784. Persons interdicted can in no case whatever make a
valid contract after the petition has been presented for their
interdiction until it be legally removed."
"Art. 1788. The contract entered into by a person of insane mind
is void . . . for want of consent. It is not the judgment of
interdiction therefore that creates the incapacity, it is evidence
only of its existence, . . . and from these principles result the
following rules:"
"(1) That after the interdiction, no other evidence than the
interdiction itself is necessary to prove the incapacity of the
person, and to invalidate any contract he may have made after the
day the petition for interdiction was presented. . . ."
"(2) As to contracts made prior to the application for
interdiction, they can be invalidated by proving the incapacity to
have existed at the time the contracts were made."
"(3) But in order to prevent
Page 139 U. S. 187
imposition, it is not enough to make the proof mentioned in the
last rule; it must also in that case be shown that the person
interdicted was known by those who generally saw and conversed with
him to be in a state of mental derangement, or that the person who
contracted with him, from that or other circumstances, was
acquainted with his incapacity."
"(4) That except in the case of death, hereafter provided for,
no suit can be brought . . . to invalidate a contract on account of
insanity unless judgment of interdiction be pronounced before
bringing suit, etc. . . ."
"(5) That if the party die within thirty days after making the
act or contract, the insanity may be shown by evidence without
having applied for the interdiction; but if more than that time
elapse, the insanity cannot be shown to invalidate the act or
contract unless the interdiction shall have been applied for,
except in the case provided for in the following rule:"
"(6) That if any instrument or other act of a person deceased
contain in itself evidence of insanity in the party, then it shall
be declared void, although more than thirty days have elapsed
between the time of making the act and the death of the party, and
though no petition shall have been presented for his
interdiction."
"(7) In the case mentioned in the preceding rule, other proofs
of insanity may be offered, etc."
"(8) That where insanity is alleged to avoid a donation or other
gratuitous contract, it is not necessary to show that the insanity
was generally known. It will be sufficient to show that it existed,
and if the party be dead without having been interdicted, it is not
necessary to show in this case that interdiction had been applied
for."
It is apparent from these provisions that the allegations of the
bill as to the condition of Stockmeyer's mind on the 25th of
January, 1884, do not entitle the plaintiff to relief upon the
ground that he was incapable in law of making a binding agreement,
and the proof fails to show that the persons who at that time
generally saw and conversed with him knew or even believed him to
be in a State of mental derangement, or that McCan had any ground
whatever to doubt his capacity to contract.
Louisiana Bank v.
Dubrenil, 5 Martin 416, 425;
Page 139 U. S. 188
Phelps v. Reinach, 38 La.Ann. 547. On the contrary, the
evidence shows that when he intervened in the McCan mortgage he
was, although of peculiar and at times eccentric manners, not
incompetent for the transaction of business. He recognized the fact
that Henry and George Godberry needed more money to carry on their
plantation and that, unless they obtained it, his interests under
the prior pledge would be put in peril. He was not himself able to
make further advances, and approved, if he did not suggest, that
application be made for that purpose to McCan. The latter agreed to
make advances for the current year only upon the condition, among
others, that his mortgage and crop lien should take precedence of
all others. This Stockmeyer perfectly understood, and distinctly
assented to, with full apprehension of what he was doing and that
condition was plainly expressed in the contract, for it is therein
stipulated that the mortgage and privilege then existing for the
two notes for $8,750 each, as well as for the indebtedness to
Stockmeyer of $32,000 for and on account of advances to the
Angelina Plantation, were "subordinate" to the McCan notes and
mortgage. The testimony of the notary before whom the McCan
mortgage was executed is positive to the effect that at that time,
there was nothing peculiar in Stockmeyer's conversation, and that
he presented the same appearance as on several previous occasions
when transacting business with that officer. The truth is that
Stockmeyer's mind did not commence to give way, so far as his
friends could perceive, until within a few days -- not more than a
week or ten days -- prior to February 20, 1884, when he was
transferred to the Louisiana Retreat for the Insane. The physician
who examined him on that day and by whose advice he was removed to
that institution testified that he was engaged in the transaction
of his business all the time until about a week before being
committed to the asylum. Undoubtedly he was on and after that date
incapable of making a binding contract. But we are not to infer
incapacity to have existed on the 25th of January, 1884, from the
mere fact that he became insane within a few days before his
removal to the asylum for treatment.
Page 139 U. S. 189
The suggestion that there was gross inadequacy of consideration
is without force. Stockmeyer consented that his mortgage be
subordinated to McCan's because in his judgment further advances to
the plantation could not be otherwise obtained, and without such
advances he supposed, and reasonably, that it would run to waste,
destroying all chance to save his debt. Besides, the advances by
McCan in consideration of his mortgage's being accorded priority
was enough to sustain the agreement to that effect.
After a close scrutiny of all the evidence, we are of opinion
that nothing is disclosed to support the contention that the McCan
mortgage and crop lien were obtained by imposition or undue
influence. No such inference is justified by the evidence.
The other aspect in which the case is presented by the appellant
involves the validity of the sale by the sheriff under the
proceedings for executory process. The first point made in support
of this general contention is that the clause in the McCan mortgage
dispensing with appraisement was not valid or binding under the
laws of Louisiana; that without appraisement, a legal sale could
not occur. Under the Louisiana law, Code of Practice 1870, art.
745,
"when the sheriff sells property which he has seized conformably
to provisions contained in this chapter [relating to executory
process], he must cause the same appraisements to be made and
observe the same formalities as are prescribed for the sale of
property seized in execution."
The latter sales are provided for in Articles 663 to 704,
inclusive, of the Code. In
Levicks v. Walker, 15 La.Ann.
245 -- a case much relied upon by the appellant -- the suit was
upon a note executed in Pennsylvania, the maker describing himself
as residing in Louisiana, and promising to pay without defalcation
and "without any relief whatever from appraisement or valuation
laws." Judgment in that form was refused, and the plaintiff
appealed. Chief Justice Merrick, in affirmance of the judgment,
said:
"We think the stipulation in a contract that the property of the
debtor shall be sold without appraisement in the event of
nonpayment at maturity one of those facts which ought not
Page 139 U. S. 190
to be recognized by our courts in the decrees rendered upon such
contract. The law has by express provisions ordained the mode in
which its own officers shall enforce the judgments of the
courts."
Justices Land and Buchanan held that the right of the debtor to
appraisement in case of the forced alienation of his property might
be waived by him, and his property sold at the first offer for cash
for whatever price it would bring. But they concurred in the
judgment of affirmance because
"the waiver in such a case must be in a more solemn and
authentic form than that of a promissory note, otherwise the waiver
would become a mere formula in such instrument, and the entire
policy of the law would thereby be defeated, to the injury of both
debtors and creditors."
The subject was elaborately considered by the Supreme Court of
Louisiana in
Broadwell v. Rodrigues, 18 La.Ann. 68, where
the question was whether the clause inserted in the act of mortgage
there in suit, dispensing with the appraisement required by
articles 673 and 745 of the Code of Practice, was valid in law. The
case turned upon the construction to be given to Article 11 of the
Civil Code of Louisiana, providing that
"Individuals cannot by their conventions derogate from the force
of laws made for the preservation of public order or good morals.
But in all cases in which it is not expressly or implicitly
prohibited, they can renounce what the law has established in their
favor when the renunciation does not affect the rights of others
and is not contrary to the public good."
It was contended on one side that the law requiring the property
of a judgment debtor to be appraised before it could be sold by the
sheriff in execution of a judgment is a public law, and that an
agreement to waive or dispense with the appraisement is absolutely
void, and on the other that the necessity for appraisement in
judicial sales is established exclusively for the benefit of the
defendant, and that he may therefore validly renounce it under the
second paragraph of Article 11 of the Civil Code. The court
said:
"From the general tenor of our jurisprudence, we could hardly
have deemed this question an open one, for it has been uniformly
held that the legal formalities attending final process are
Page 139 U. S. 191
established by law in favor of debtors in executions, which they
can renounce without in any manner running counter to the proviso
in the second paragraph of Article 11, Civil Code. The cases to
which our attention has been called view the question in all its
phases, and seem to consider the progressive steps in execution of
judgment as mere formalities, less a matter of public policy than
of private concern, and hence they deem the denunciation or waiver
of those rights as permissible under paragraph 2 of Article 11 of
the Civil Code."
The prior cases referred to in the opinion as sustaining these
views were
Mullen v. Harding, 12 La.Ann. 271;
Le Blanc
v. Dubroca, 6 La.Ann. 362;
McDonogh v. Garland, 7
La.Ann. 143;
Desplate v. St. Martin, 17 La.Ann. 91, 92,
and others. To the same effect are
Jouet v. Mortimer, 29
La.Ann. 206, and
Soniat v. Miles, 32 La.Ann. 165. So that
the objection that the sale was illegal for want of an appraisement
is without any foundation upon which to rest.
But it is said that the Godberrys could not by their agreement
with McCan waive appraisement so as to affect Stockmeyer, or the
vendor's mortgage and privilege securing the notes that had been
pledged to him. This contention, it is supposed, finds support in
Article 2078 of the Revised Civil Code, providing that
"Several obligations are produced when what is promised by one
of the obligors is not promised by the other, but each one promises
separately for himself to do a distinct act. Such obligations,
although they may be contained in the same contract, are considered
as much individual and distinct as if they had been in different
contracts, and made at different times."
To this suggestion it is sufficient to answer that the right of
appraisement is given by the statute to the owner, and its waiver
by the Messrs. Godberry was not a matter of which creditors could
complain unless such waiver was made fraudulently or to defeat
their debts, as in
Lawrence v. Young, 1 La.Ann. 297, 299,
certainly not one of which any creditor could complain who
intervened and became a party to the mortgage dispensing with
appraisement.
It is also said that in the writ commanding the sheriff to seize
and sell he was required "to seize, and, after the legal
Page 139 U. S. 192
delays, to advertise and sell, according to law," and that, as
he was not directed to sell without appraisement, he could only
sell in the mode prescribed by the statute -- that is, upon
appraisement.
Union Bank v. Bradford, 2 La.Ann. 416, is
cited in support of that proposition. That was an action to annul a
sale of land under execution by the sheriff. The mortgage, given by
the defendants, contained a clause authorizing a sale "for cash,
without appraisement." In the petition praying for the order of
seizure and sale, no reference was made to this clause, and the
right to sell without appraisement was not claimed. The prayer was
for an order that the property be seized and sold "as the law
directs," etc. An order of seizure and sale was directed to be
issued, "as prayed for," and that the property be sold "as the law
directs." Under this order, the clerk issued the writ, directing
the sheriff to seize and sell for cash, without appraisement, and
the sale was so advertised. The court said:
"It is manifest the sale was not made in conformity with the
order of the judge. The stipulation in the act of mortgage was one
made for the benefit of the plaintiffs, which it was discretionary
with the bank to have enforced or to renounce. It was virtually
waived by claiming a seizure and sale according to law, the true
intendment of which is that the proceedings were to be in
conformity with the rules which govern seizures and sales under
executory process. The order was in accordance with the prayer of
the petition, and no sale could have been legally effected under it
without observing the formalities required in ordinary cases under
executory proceedings, one of which is that the property shall be
previously appraised. The clerk was not authorized, under the order
granted by the judge, to direct that the sale be made without
appraisement. His act was null, and conferred no authority on the
sheriff to dispense with the observance of a formality which was so
essential, as the result proves, to the protection of the
plaintiff's rights."
The facts here are entirely different from those in the above
case. The petition of McCan for executory process asks that the
mortgaged property be seized and sold for cash to the highest
bidder, "without appraisement, and according to law."
Page 139 U. S. 193
The order upon the petition was: "Let executory process issue
herein, as prayed for, and according to law." The writ of seizure
and sale directed the sheriff "to seize, and, after the legal
delays, to advertise and sell, according to law, . . . to pay and
satisfy in cash the claim of the plaintiff," etc. The writ, it is
true, did not in terms require the sale to be made without
appraisement, but the omission was not one of which Stockmeyer
could complain after intervening in the special mortgage to McCan,
certainly not unless he showed special injury to his rights.
Besides, we think, in view of the petition and order for executory
process, the words "according to law" in the writ imported a sale
in accordance with the stipulations of the mortgage and the prayer
in the petition -- namely without appraisement. There is no ground
to say, as in the case in 2 La.Ann., that the mortgagee, by his
petition, or in any other mode, waived his right to a sale without
appraisement and asked a sale under the statute with
appraisement.
Another question is whether the sale was invalid by reason of
the entire property's having been sold in block at the seat of
justice, and not, as to any portion of it, on the plantation. By
Article 664 of the Code of Practice, it is provided that the sale
of the property under a writ of
fieri facias
"must be made by the sheriff at the seat of justice for the
parish where the seizure is made, and he shall choose for the place
of sale the spot where it may have the greatest degree of
publicity, except in the cases enumerated in the following
articles:"
"Art. 665. In the country, the sale may be made on the
plantations which are to be sold if the debtor require it, but in
this case notice must be given of the fact in the advertisement of
sale."
"Art. 666. Animals and utensils attached to plantations and
manufactures, and such articles as cannot be easily removed, must
be sold on the spot where they are taken, on the day and hour
appointed for this purpose by the sheriff."
"Art. 667. The effects seized must be appraised with such
minuteness that they may be sold together or separately, to the
best advantage of the debtor, as he may direct."
Now the objection as to the place of sale is fully met by
Walker v. Villavaso, 26 La.Ann. 42, 44, decided in
1874,
Page 139 U. S. 194
where the court, after quoting Article 666, said:
"The two preceding articles [664, 665] provide that sale of the
property must be made at the seat of justice, but in the country,
it may be made on the plantations which are to be sold, if the
debtor requires it, of which notice must be given in the
advertisement. These articles must all be construed together, so as
to give effect to each. Where a plantation and its fixtures are to
be sold under a mortgage, as in this case, the sale must be made at
the seat of justice unless the debtor requires it to be made on the
plantation. It is not intended that the articles attached to the
plantation and which are mortgageable shall be sold in one place
and the land in another. Under the writ of seizure and sale all,
are seized and sold at one time and place."
And perhaps, that the privilege given to the debtor might not be
abused, the General Assembly, by the Act of March 2, 1876, relating
to sales by sheriffs and coroners, Laws La. 1876, p. 50, declared
that nothing therein contained
"shall deprive the defendant of the privilege now enjoyed by him
of having his property, when it is under seizure, offered for sale
at his domicile upon his giving notice to the proper officer within
three days after seizure."
The necessity for this limitation as to the time within which
the defendant must indicate his wishes as to the place of sale is
shown by the occurrences in this case. The petition of McCan was
filed and executory process directed to be issued on the 15th of
January, 1885. Notice of demand and service of copy of petition
were waived by the debtors January 19, 1885. The seizure was made
January 27, 1885. The sale was advertised January 31, 1885, to take
place March 7, 1885, the advertisement stating that the plantation
and the personal property attached to it and used in its
cultivation would be sold for cash at the courthouse of the parish,
and a copy of the petition of protest by debtors, with the
accompanying affidavit, and the order of the judge of the
Twenty-Second Judicial District requiring the plantation to be sold
at the courthouse and the other articles at the plantation was not
served on the sheriff until March 5, 1885, three days only before
the day on which the sale was to occur according to the
advertisement. It thus appears that, in any
Page 139 U. S. 195
view of the statute, the demand for the sale of the personal
property on the plantation, apart from the plantation, was out of
time.
As to the effect upon the sale of the order made at chambers by
the judge of the Twenty-Second Judicial District directing that the
personal property covered by the McCan mortgage be appraised and
sold separately on the plantation but little need be said. Touching
this order it may be observed that the counsel for the appellant
does not refer to any statute of Louisiana conferring upon the
judge who made it the power to act in any case pending in another
district in which there is an actual vacancy in the office of
judge, while the counsel for the appellees say that if any
authority exists for the exercise of such a power, they have been
unable to find it in the laws of that state. It does not seem to us
that this order, made without citation or prayer for citation
against the party to be affected by it, can have the force of a
judgment; nor did it authorize the sheriff to depart from the terms
of the advertisement of sale in respect either to the place of sale
or the mode of conducting it. In view of the terms of the
advertisement, a sale in conformity with the above order, without
readvertisement, would have been irregular if not invalid. This
order is liable to the same objection as the one before this Court
in
Freeman v. Dawson, 110 U. S. 264,
110 U. S. 270,
of which it was said:
"The action of the circuit judge in directing the recall of the
execution in vacation, out of court, without notice to the judgment
creditor, was irregular and unauthorized, and of no legal
validity."
It is contended with much earnestness that the sale of the
personal property in a lump, along with the plantation, was
unauthorized by the statute and void. We are not satisfied of the
soundness of this view. In
Morris v. Womble, 30 La.Ann.
1312, 1314, the question was whether the debtor, who had specially
mortgaged his plantation, with all the buildings and improvements
thereon, was entitled of right to have the plantation sold in lots.
The court, after observing that in the case of a
fi. fa.
on an ordinary judgment, the debtor has the right to point out the
property he desires sold, provided it
Page 139 U. S. 196
be available and sufficient, says:
"But the case was conceive to be very different where the debt
for which the sale is made bears special mortgage on the thing to
be sold, and where the thing has been mortgaged as an entirety, a
unit, and thus made by contract, and in contemplation of the
parties, indivisible, whether so by nature or not."
"Thus," the court proceeds,
"where a plantation, with its accessories, has been specially
mortgaged, the stock, implements, etc., thereto attached by the
owner, and therefore made immovable by accession, cannot be sold
separately from the plantation itself, no more than can a house or
other building on it. When the law gives the mortgage creditor the
right to seize the whole thing mortgaged, it gives him the right to
sell the whole thing, if it be indivisible by nature or only so by
the agreement and contract of the parties."
But if it be assumed that the personal property used in the
cultivation of the plantation and embraced in the special mortgage
ought not to have been sold in block with the plantation, but each
article separately, the failure to do so did not render the sale
void. The utmost that could be said is that the sale was informal
and irregular. But in Louisiana, mere informalities or
irregularities in a judicial sale do not alone constitute a
sufficient ground for setting them aside. The bill alleges that the
property did not bring a fair value and that, by reason of the mode
of sale, persons who would have bid did not attend and were
prevented from bidding. These allegations, if material, are not
sustained by proof. Nor is there sufficient proof that the
property, if resold, would bring any larger price than McCan bid
for it or would be sufficient to discharge his claim in full. The
plaintiff does not propose that he or anyone else will at a resale
bid any larger sum than McCan paid. Nor have the Godberry brothers,
since the sale, made complaint of unfairness in it. Under such
circumstances, it not appearing that any real injury has been done
to the plaintiff, the sale should not be disturbed because of
omissions or informalities that did not affect the substantial
rights of the party complaining. In
Copeland v. Labatut, 6
La.Ann. 61, the court said:
"The petition contains no allegation,
Page 139 U. S. 197
and the record no proof, of any injury having been sustained by
the plaintiff in consequence of the informalities alleged, and no
offer on the part of the plaintiff to warrant that the property, if
resold, would bring a higher price than it did before. Under the
rule which we have found it necessary to adopt, those omissions
would prevent us from disturbing the judgment even if the
informalities were much more material than they actually are."
So also, in
Mullen v. Harding, 12 La.Ann. 271, 272:
"Unless the plaintiffs can show that they have suffered injury
by the informalities complained of they ought not to be permitted
to attack the validity of the proceedings."
Barret v. Emerson, 8 La.Ann. 503, 504;
Stockton v.
Downey, 6 La.Ann. 581, 585;
Coiron v. Millaudon, 3
La.Ann. 665;
Desplate v. St. Martin, 17 La.Ann. 91, 92;
Seawell v. Payne, 5 La.Ann. 255.
Decree affirmed.