Where a mortgage of land and slaves in Louisiana was made to the
Bank of Louisiana, the property sold in the manner pointed out by
the charter of the bank, the purchasers applied to the district
court (state court) under a statute of Louisiana for a monition,
citing all persons who objected to the sale to make their objection
known, that court decided that the sale was null and void, but the
supreme court reversed the judgment as to the widow and those
claiming under her, this judgment cuts off all the objections that
apply to the manner of conducting the sale, and to the form of the
judgment in the court below.
The supreme court of the state decided that the courts below had
jurisdiction of the case, and that decision is binding upon this
Court. The whole matter now in controversy has therefore been
legally adjudicated by the courts of the state.
This was an action brought by John P. Jeter, a citizen of
Louisiana resident in New Orleans, against James Hewitt and David
Heron, citizens of the State of Kentucky, temporarily within the
jurisdiction of the Circuit Court for the District of
Louisiana.
The nature and history of the case are stated in the opinion of
the Court. It was submitted to the circuit court upon the
pleadings, depositions, oral testimony, and arguments of
counsel,
Page 63 U. S. 353
which found the facts substantially as they are narrated in the
opinion of this Court, and then dismissed the petition of the
plaintiff. A writ of error was sued out, which brought the case up
to this Court.
Page 63 U. S. 358
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
The plaintiff commenced this suit to recover a plantation and
slaves, with the horses, mules, implements, and other things
enumerated in the petition, destined to the use and convenience of
the plantation, and for an account of rents and issues for a term
of years. He deduces his title from Christopher Ford, who was in
possession of the plantation at his death, in 1849, through a
conveyance from Louisa W. Ford, the widow, executrix, and
instituted heir of her deceased husband, dated in November,
1850.
The defendants show that in November, 1845, two banking
corporations of Louisiana (Bank of Louisiana and New Orleans Canal
and Banking Company) sold to Christopher Ford this plantation and
twenty-eight slaves for the price of $40,000, a portion of which
was paid in cash and for the remainder a credit was given, and that
Ford mortgaged the property conveyed to him, and sixty-eight other
slaves, which he agreed to place on the plantation. On the same
day, he obtained from the Bank of Louisiana a loan of money which
was secured by another mortgage on the same property. At
Page 63 U. S. 359
the time of the death of Ford, he was in arrears for the debt
and interest that had accrued.
In the mortgage to the Bank of Louisiana, Ford agrees not to
alienate, deteriorate, or encumber the property mortgaged, and
confesses judgment for the sum of money to be paid. He renounces
the benefit of the laws that require property seized on execution
to be sold on credit or after appraisement, and agrees that if the
debt shall not be paid according to the tenor of the mortgage, then
the banking company may obtain an order of seizure and sale, and
sell the mortgaged premises and slaves by public auction for cash
after an advertisement of thirty days. He waives his privilege to
be sued in any other district than the First Judicial District of
the state and agrees that process may issue from the District Court
for the First District or any other court in New Orleans having
jurisdiction.
The charter of the bank provides that upon all mortgages
executed under the act the bank shall have the right to seize the
property mortgaged, in whatever hands it may be, in the same manner
and with the same facilities that it could be seized in the hands
of the mortgagor, notwithstanding any sale or change of the title
or possession thereof, by descent or otherwise.
On the 16th December, 1850, after the conveyance of Mrs. Ford to
the plaintiff, the Bank of Louisiana instituted a suit upon the
second mortgage above mentioned, a writ of seizure and sale issued,
and the property was advertised for sale the 1st February, 1851.
Jeter was present at the sale that took place on that day, bid for
the property the sum of seventy thousand dollars, and it was
adjudicated to him at that price. He offered a draft for the amount
of the execution on merchants residing in New Orleans, and asked
for time to go for the money, and these being refused, the property
was again offered for sale and purchased by Heron & Hewitt for
the price of sixty-six thousand dollars, and thereupon the sheriff
executed a deed to the purchasers, conformably to the
adjudication.
This sum being insufficient to discharge the encumbrances on the
property, proceedings were taken for the seizure and
Page 63 U. S. 360
sale of other slaves, which were sold in September, 1851, and
adjudicated to the defendants.
The defendants resist the claim of the plaintiff under these
titles. The plaintiff objects to them:
1. That Ford, the mortgagor, was dead at the commencement of
these proceedings, and that the notice issued to him was nugatory,
that his heir and executrix was not notified at all, and did not
reside in the Parish of Ascension nor have any title to the
plantation at which the notices of the seizure were left, and that
the plaintiff is not concluded by his presence at the sale and bid
for the property, having forbade the sale before the offer at which
the defendants became the purchasers was made.
2. That the sale was irregular and illegal in respect of the
notice of the seizure, the advertisements, appraisement, and
refusal to allow the plaintiff time to complete his purchase.
3. That the Fifth District Court was not authorized to entertain
a suit for a thing in the Parish of Ascension, and that, if consent
could give jurisdiction, the consent given by Ford in his mortgage
was personal, and binding only in respect to his own privilege, and
did not affect his heir or her assignee.
The purchasers, Heron & Hewitt, in April, 1852, applied to
the District Court of New Orleans, under a statute of Louisiana,
for a MONITION, citing all persons who can set up any right to the
property adjudicated, in consequence of any informality in the
order, decree, or judgment of the court, under which the sale was
made, or any irregularity or illegality in the appraisements and
advertisements, in time or manner of sale, or for any
other
defect whatsoever, to show cause why the sale so made should
not be confirmed and homologated, and, after due proceedings in the
premises, that the said sales be confirmed, homologated, and made
the final judgment of the court.
The executrix (Louisa W. Ford) appeared to this monition and
made opposition to the homologation of the sale, and disclosed at
large the objections above specified, and prayed that the sale be
declared null and void, and that the property might be restored to
her possession.
Page 63 U. S. 361
To this opposition Heron & Hewitt replied, that they were
bona fide purchasers at a public sale by the Sheriff of
Ascension, under a writ from the court, without any knowledge of
neglect, or illegality, or want of jurisdiction; that the opponent
had sold her interest in the property, and was estopped to oppose
the sale by her acts. They pleaded that the mortgage contained a
confession of judgment, and no notice was necessary to anyone to
obtain a judgment, and assert there is no just cause to deny the
homologation of the sales.
The district court, at the November term, 1852, entered an order
describing the property embraced in the sheriff's deed and reciting
the facts relative to the grant of the monition and the motion for
the homologation of the sale, and conclude:
"The court being satisfied from inspection of the record and
evidence adduced that all the formalities of the law have been
complied with; that the advertisements required have been inserted
and published for the space of time and in the manner required by
law; that the property has been correctly described, and the price
at which it was purchased truly stated; and there being but one
opposition filed thereto, to-wit by Mrs. Christopher Ford, it is
adjudged and decreed that said sheriff's sale be confirmed and
homologated according to law insofar as the same has not been
opposed."
The cause was continued in the district court upon the
opposition proceedings of Mrs. Ford.
In June, 1853, district court rendered the judgment upon this
opposition that the sale was null and void for the reasons pleaded,
and condemned the petitioners Hewitt & Heron to costs. An
appeal was taken to the Supreme Court of Louisiana. That court
rendered its judgment in 1854.
The court said:
"The appellants are
bona fide purchasers at a judicial
sale of the plantation and slaves, at the instance of a mortgage
creditor, at a fair price, which has been paid, and possession
taken, and improvements made. That, as executrix, Mrs. Ford had
done nothing except to obtain probate of the will, and as heir she
has sold her interest to Jeter in the estate, he covenanting to pay
the debts, and that she gave him a power
Page 63 U. S. 362
to sell and administer the estate. That Jeter had failed to
comply with his bid at the sheriff's sale, and that then the
appellants had become the purchasers, settled with mortgage
creditors, and took possession."
"Under these circumstances," the court concluded,
"we think it inequitable to permit this sale to be questioned by
the executrix, who we consider as merely attempting to aid Jeter,
her vendee and agent, in a speculation at the expense of these
bona fide purchasers under the guise of representing a
small minority of the creditors, whom she personally and Jeter are
bound to pay. It is obvious, under the facts above stated, that
neither of them, Jeter and Mrs. Ford, would be permitted personally
to question the sale, on account of the alleged informalities."
And thereupon the decree of the district court was reversed and
the opposition dismissed, reserving to the creditors their right,
if any, to sue for a rescission of the sale.
Bank of Louisiana
v. Ford, 9 Ann. 299.
The effect of the judgment confirming and homologating the sale
is declared in the statute that authorizes the monition to issue,
in favor of purchasers of property "at sheriffs" sales," at those
"made by the syndics of insolvents" estates," at those "made by the
authority of justice," or of courts, and to enable them "to protect
themselves from eviction from the property so purchased," and "from
any responsibility to the possessors of the same." It confers upon
the order made by the court upon the monition, "the authority of
res judicata," so as to operate
"as a complete bar against all persons, whether of age or
minors, whether present or absent, who may thereafter claim the
property so sold, in consequence of all illegality or informality
in the proceedings, whether before or after judgment,"
and the judgment of homologation is to be received and
considered
"as full and conclusive proof that the sale was duly made
according to law in virtue of a judgment or order legally and
regularly pronounced on the interest of the parties duly
represented,"
saving and excepting, "that it shall not render a sale valid
made in virtue of a judgment when the party cast was not duly cited
to make defense."
The judgment of the district court homologating the sale
Page 63 U. S. 363
concluded all parties except Mrs. Ford, who had filed opposition
to the order. Subsequently the supreme court overruled her
opposition, assigning as the reason that the sale was fair, the
purchasers
bona fide, and the opponent had no interest in
the subject of contest. The plaintiff, whether we consider him as
acting independently or in connection with Mrs. Ford and under the
"guise of her name" and character, is affected by these orders.
By the very terms of the statute, all the objections that apply
to the manner of conducting the sale and to the form of the
judgment are cut off by the judgment of homologation.
The only question that the judgment leaves open is whether the
court that rendered the original judgment had jurisdiction of the
person. But this question was presented to the district court and
the supreme court upon the opposition of Mrs. Ford in the same
manner in which it is presented to this Court. The facts of the
death of Ford, the probate of his will in the Parish of Ascension
before the order of seizure, the seizure within three days from the
date of the order, the notice directed to Ford, and left at the
house of the overseer, in the absence of Mrs. Ford, and after her
sale to Jeter, the presence of Jeter at the sale, the adjudication
to him of the property upon his bid, and the resale upon his
neglect to comply with the terms of the sale, and the purchase by
Heron & Hewitt, with the sheriff's deeds to him, were presented
to those courts upon the evidence that has been submitted to this
Court.
The decision of the Supreme Court of Louisiana was that as
executrix, Mrs. Ford did not really and truly represent the
interest of the creditors of her husband in her opposition, and
that she used that title to protect her own interest and that of
Jeter, her agent and vendee -- but that they would not be permitted
"personally to question the sale, on the score of the alleged
irregularities."
The authority of
res judicata as a medium of proof is
acknowledged in the Civil Code of Louisiana, and its precise effect
in the particular case under consideration is ascertained in the
statute that allows the proceeding by monition. Under the
Page 63 U. S. 364
system of that state, the maintenance of public order, the
repose of society, and the quiet of families require that what has
been definitely determined by competent tribunals shall be accepted
as irrefragable legal truth. So deeply is this principle implanted
in her jurisprudence that commentators upon it have said, the
res judicata renders white that which is black and
straight that which is crooked.
Facit excurvo rectum, ex albo
nigrum. No other evidence can afford strength to the
presumption of truth it creates, and no argument can detract from
its legal efficacy.
The jurisdiction of the courts of the United States in cases
like the present is derived exclusively from the fact that the
parties are citizens of different states. The rights of these
parties originate in the law of Louisiana, and must be ascertained
by a reference to the principles adopted and administered by her
constituted authorities. We are not invested with power to review
the sentences of her courts except in a few cases arising under the
Constitution and laws of the United States; nor is it our province
to augment or diminish their value or to place any different
estimate upon them than they have in the municipal code of the
state. They are entitled to the same force and effect here as they
have in Louisiana.
The statement of the case of these parties shows conclusively
that the whole subject of this controversy has been legally
submitted to the tribunals of Louisiana and that the adjudication
was in favor of the defendants.
This was the decision of the Circuit Court of the United States
in Louisiana, from whose judgment this writ of error has been
taken. It remains for us only to affirm that judgment.
Judgment affirmed.