1. By the law of Louisiana as held by her courts, it is
indispensably necessary, in order to make a valid sale of land
under a foreclosure of a mortgage that in all parishes except
Jefferson and Orleans, there should be an actual seizure of the
land -- not perhaps an actual turning out of the party in
possession, but some taking possession of it by the sheriff more
than a taking possession constructively.
2. Under the arrangement known in Louisiana as the "pact
de
non aliendo," the mortgagee can proceed to enforce his
mortgage directly against the mortgagor without reference to the
vendee of the latter. But the vendee has sufficient interest in the
matter to sue to annul the sale if the forms of law have not been
complied with by the mortgagee of his vendor in making the
sale.
3. Where a return in a record, purporting to be a sheriff's
return to a
fieri facias, alleges that under a proceeding
to foreclose a mortgage, the sheriff seized the mortgaged premises,
but does not purport to be signed by the sheriff, the return is
traversable, and if the law requires an actual seizure, it may be
shown that none was made.
Walter Bondurant brought this action against one Watson, in the
court below, to recover possession of a lot of land containing one
hundred and sixty acres, in the Parish of Tensas, Louisiana.
The case was thus:
Daniel Bondurant, owning a large plantation in the said Parish
of Tensas, died intestate, leaving three sons, Horace, Albert, and
John, and also a grandson, the plaintiff, then an infant, and
co-heir with them. In 1852, the sons sued for a partition, and a
decree of sale was ordered. A sale was made,
Page 88 U. S. 124
and the sons bid off the plantation for $150,000, of which sum
the plaintiff was entitled, as one heir of his grandfather, to a
fourth, or $37,500. The sheriff, on the 4th day of December, 1852,
executed to the sons a deed, reserving a special mortgage on the
lands as security for the payment to the plaintiff of his share of
the purchase money when he should come of age, which would be in
March, 1862. In the Act of sale, which was executed by the sheriff
and the purchasers, the latter bound themselves not to alienate,
deteriorate, or encumber the property to the prejudice of the
mortgage, which covenant is called, in Louisiana law, the "pact
de non alienando," and dispenses with the necessity of
making any persons other than the mortgagors parties to a judicial
proceeding upon the mortgage. This mortgage was duly recorded on
the 6th of December, 1852. Regularly, it should have been
reinscribed within ten years from that time. But it was not
reinscribed until September, 1865, the plaintiff alleging, by way
of excuse, the existence of the civil war and that he was prevented
by "
vis major" from reinscribing it.
Meantime the sons divided the plantation between themselves and
the tract in question was set off to John Bondurant, who, in 1854,
conveyed it to Watson, the defendant, who had been in possession
thereof ever since.
On the 30th of January, 1866, the plaintiff commenced an action
against his uncles in the District Court, Parish of Tensas, for the
recovery of $37,500, the amount of his mortgage, and obtained a
judgment against them, under which the sheriff sold all the
property mortgaged, including the tract for which the present suit
was brought. Under this sale the plaintiff now claimed the land in
controversy. The judgment was rendered November 14, 1867. A
fieri facias was issued, directed to the sheriff of the
parish. This writ was produced in evidence, and had attached
thereto a statement, unsigned, purporting to be a return, as
follows:
"Received the 9th December, 1867, and served this writ as
follows, to-wit: I seized, on the 25th day of December, A.D. 1867,
the following described property belonging to defendants,
Page 88 U. S. 125
to-wit (describing the entire plantation). On the 28th day of
December, 1867, I advertised said property for sale at the
courthouse door, in this parish, on Saturday, the 1st of February,
A.D. 1868, for cash &c. I offered said property for sale, when
Walter Bondurant bid,"
&c.
The sheriff's deed to the plaintiff was also offered in
evidence, which recited the same facts.
The defendant proved, and the fact is found by the court, that
there was no actual seizure of the property in dispute, the Sheriff
of the Parish of Tensas not being in the habit of making actual
seizures, and the only notice of seizure was by posting upon the
courthouse door a notice of seizure to the said Horace, Albert, and
John Bondurant, as absentees, and that the defendant had no
knowledge of any proceeding to divest his title until March, 1869,
long after the sale.
Upon these facts, the defendant requested the court below to
decide that a reinscription of the mortgage within ten years was
necessary to its validity, but the court held that the period of
the war of rebellion was to be deducted from the period prescribed
for the reinscription of mortgages.
The defendant also requested the court to decide:
1st. That it is essential to the validity of a sheriff's return
to a writ of execution that it should be signed by him or his
deputy in order to validate an adjudication of sale.
2d. That in order to make valid a sale of tangible property in
all the parishes of Louisiana except Orleans and Jefferson, there
must be an actual seizure by the sheriff on execution.
3d. That in order to divest the title of the defendant, notice
of seizure, upon Bondurant at least, if not upon the defendant, was
essential.
But the court ruled that inasmuch as the mortgage contained the
pact
de non alienando, the defendant was not to be
considered in possession against the plaintiff, and that it did not
matter what irregularities were in the sheriff's proceedings in
selling the property, as Watson could not avail him self of
them.
Page 88 U. S. 126
Judgment having been given accordingly for the plaintiff, Watson
brought the case here.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
Without adverting to the other questions raised by the
defendant, we are of opinion that the court erred in declining to
allow the objection as to the want of seizure under the execution.
The law of Louisiana seems to us very clearly to require an actual
seizure in the country parishes. The Parishes of Orleans and
Jefferson are an exception, and that very exception makes the
existence of the rule in other parishes more clear and distinct.
The act of 1857 declares that in the Parishes of Jefferson and
Orleans,
"the registry in the mortgage office shall be deemed and
considered as the seizure and possession by the sheriff of the
property therein described, and it shall be unnecessary to appoint
a keeper thereof."
This act is itself constructive of the force and effect of the
general law. That law (Code of Practice, Article 642) prescribes
the form of the writ of
fieri facias, which must command
the sheriff to seize the property of the debtor. Article 643
declares that "as soon as the sheriff has received this writ, he
must execute it without delay by seizing the property of the
debtor." The code then goes on to direct the sheriff as to further
proceeding. He must give notice to the debtor to appoint an
appraiser &c. Article 656 declares that "when the sheriff
seizes houses or lands he must take at the same time all the rents,
issues, and revenue which this property may yield." Article 657
says, if it be land or a plantation which he has taken, unless the
same be leased or rented, it shall remain sequestered in his
custody until sale. "Consequently," says the law, "he may appoint a
keeper or an overseer to manage it, for whom he shall be
responsible." Article 659 declares that when the objects seized
consist of money, movables, or beasts, he shall put them in a place
of safety &c. Article 690 declares that the
Page 88 U. S. 127
adjudication thus made has, of itself alone, the effect of
transferring to the purchaser all the rights and claims which the
party in whose hands it was seized might have had to the thing
adjudged.
Other sections are equally suggestive on this point.
The courts of Louisiana hold the seizure to be essential, and
that a sale without it fails to transfer title to the
purchaser.
In the case of
Goubeau v. New Orleans and Nashville Railroad
Company, [
Footnote 1] it
was held that in order to make a legal and valid seizure of
tangible property from which the seizing creditor may acquire a
privilege in the thing seized, it is necessary that the sheriff
should take the object seized into his possession; and the mere
levying of an execution upon property found in the hands of the
debtor, or of a third person, without showing that the sheriff took
it into his actual possession, at least when he levied the writ, is
not sufficient to confer any right on the creditor. This doctrine
is affirmed in
Simpson v. Allain, [
Footnote 2] in
Fluker v. Bullard, [
Footnote 3]
Offut v. Monquit,
[
Footnote 4]
Taylor v.
Stone, [
Footnote 5]
Gaines v. Merchants' Bank. [
Footnote 6]
The cases here referred to are mostly cases of personal
chattels, or securities. But the same doctrine has been held in
regard to lands. In the recent case of
Corse v. Stafford,
[
Footnote 7] which was a
petitory suit to recover a tract of land and plantation claimed by
the plaintiff under a sheriff's sale, it was held that the sale was
void because no actual seizure had been made. It appeared in that
case, that the sheriff did no more than go on the plantation, read
the writ to the parties, and give them notice of seizure, without
doing anything else to indicate a seizure. The court said:
"Under the sheriff's sale, we think, the plaintiff did not
acquire title, because it was never taken into the possession of
the sheriff, and, therefore, that he cannot maintain his petitory
action. It has frequently been decided that a sheriff's sale,
without a valid seizure, confers no title. [
Footnote 8] "
Page 88 U. S. 128
The case of
Corse v. Stafford, it is true, arose under
an order of seizure and sale. But the same rule was held by the
Supreme Court of Louisiana in 1856, in the case of
Williams v.
Clark, [
Footnote 9] with
regard to sales under
fieri facias. The plaintiff in that
case claimed the land in question under a sheriff's sale made by
virtue of a
fieri facias issued on a judgment upon an
attachment, and, whilst the judgment was held void on account of a
defective citation, and of the fact that the attachment was set
aside, the sale was also held void, because "no valid seizure was
made of the property adjudicated." "The defendant," say the
court,
"at the date of the constructive seizure, and ever since, has
been in actual possession of the property; no attempt was made to
dispossess him. The defendant cannot be held to a constructive
notice of an invalid seizure. A purchaser at a sheriff's sale, made
without a previous seizure, acquires nothing, at least against a
third party in possession."
These are cases where the validity of the sale was assailed in a
collateral proceeding. Instances are still more numerous in which
actions of nullity have been sustained on the same ground.
[
Footnote 10]
That the person in possession should be actually turned out of
possession, in order to constitute a valid seizure, is not
understood to be necessary. But under the rulings of the Supreme
Court of Louisiana, it does seem to be necessary that there should
be some taking of possession more than a mere constructive taking;
perhaps a yielding to the sheriff's demand and a consent to hold
under him on the part of the person in possession is all that is
required.
As this is a pure question of local law, we feel bound to follow
the decisions of the highest court of Louisiana on the subject, and
according to those decisions it seems clear that there was no valid
seizure in this case.
We think, therefore, that for the failure to make any actual
seizure of the land, the sale was void.
Page 88 U. S. 129
In such a case as the present, the importance of actual seizure
is particularly obvious. The defendant was no party to the action
brought on the mortgage. He knew nothing about it. Had his lot been
seized by the sheriff as it ought to have been, his attention would
have been called to it. The seizure would have been notice. He
could then have protected himself.
The pact
de non alienando relieved the plaintiff from
the necessity of making Watson a party to his action; but it did
not relieve him from the necessity of pursuing the forms of law in
making a compulsory sale.
This very question arose in a recent case, [
Footnote 11] in which the Supreme Court of
Louisiana say:
"We concur with the plaintiff, that the insertion in the Act of
mortgage of the pact
de non alienando does not invest the
mortgage creditor with the right to disregard the forms of law in
making the forced alienation of his debtor's property. . . . The
advantage of this clause is to save the mortgage creditor the
necessity of resorting to the delays of the hypothecary action. He
can proceed to enforce his mortgage directly against his mortgage
debtor, without reference to the transferee of that debtor. But
still the transferee is subrogated to his vendor's right by virtue
of the purchase, and has sufficient interest in the object of the
contract of mortgage to sue to annul the sale, if the forms of law
have not been complied with by the mortgage creditor of his vendor
in making the forced sale."
By the same reason, and according to the cases above cited, he
has the right in a collateral proceeding, to set up, by way of
defense, the failure to follow those forms.
It has been suggested that the defendant could not go behind the
sheriff's return to the writ of
fieri facias. Had this
return been duly authenticated by the sheriff's signature, as
required by the code, perhaps there might have been plausibility in
this objection; though under the Louisiana practice it would be
very doubtful. But the return was incomplete
Page 88 U. S. 130
and presents no record evidence of the sheriff's acts. We think
the return under the circumstances was, at least, traversable, and
that it was properly shown that no actual seizure of the property
in dispute was ever made by the sheriff.
Judgment reversed and a venire de novo awarded.
[
Footnote 1]
6 Robinson 348.
[
Footnote 2]
7 Robinson 504.
[
Footnote 3]
2 Annual 338.
[
Footnote 4]
Ib., 785.
[
Footnote 5]
Ib., 910.
[
Footnote 6]
4
id. 370.
[
Footnote 7]
24 Louisiana Annual 263.
[
Footnote 8]
11 Annual 761; 12
id. 275; 19
id. 58; 22
id. 207; 23
id. 512.
[
Footnote 9]
11 Louisiana Annual 761.
[
Footnote 10]
See, amongst others, cases before cited,
and see
Kilbourne v. Frellsen, 22 Annual 207.
[
Footnote 11]
Villa Palma v. Abat & Generes, 21 Annual 11.
