1. Although in Louisiana informalities which occur in a
sheriff's proceedings under execution may, if taken advantage of in
due time, be good ground for annulling a sale made by him, yet if
he, being thereunto authorized, sells the land and executes a deed
therefor to a
bona fide purchaser, the latter, in an
action against him to recover the land, commenced after five years
from the time he entered into possession, can set up the statutory
prescription.
2. The failure of the sheriff to actually seize the property is
cured by the possession of such a purchaser for five years.
3. Under the laws of Louisiana, a deed of property from a person
having authority to sell is regarded as a just title for the
purpose of prescription.
This is a petitory action brought to recover a certain
plantation in Louisiana. The plaintiff (now defendant in error)
claimed the land under an act of donation from her uncle, Ackley
Perkins, passed the 5th of September, 1861. Perkins had purchased
the land at sheriff's sale made Aug. 3, 1861, under a vendor's
lien, and gave a twelve-month's bond for the purchase money. One
Williams, and William S. Pike, the defendant below (now plaintiff
in error), were his sureties on this bond. The bond not being paid,
a writ of
fieri facias, under the laws of Louisiana, was
issued upon it against the goods and lands both of Perkins and his
sureties. The sheriff, under and by virtue of this writ, sold the
plantation in question on the 6th of January, 1866; and Pike, to
save his own property and to protect himself against his liability
as surety, became the purchaser, paid the encumbrance, and went
into possession on the day of sale. He had been in possession over
five years
Page 94 U. S. 7
when this action was brought, and, amongst other things, pleaded
prescription of one, three, and five years.
On the trial of the cause, the plaintiff having proved the act
of donation from her uncle, Ackley Perkins, on which she relied,
and the previous purchase of the property by him at sheriff's sale
in August, 1861, the defendant gave in evidence the twelve-month's
bond executed by Perkins and his sureties for the purchase money at
said sale, the
fieri facias issued thereon in October,
1865, and the sheriff's deed to him dated Jan. 6, 1866, and
introduced evidence tending to show that he, the defendant, had
been in possession of the property in question for a period of five
years, and that he purchased the property at the sheriff's sale,
and thereupon he asked the court to charge, that if the jury found
that he had been in possession for a period of five years, and that
he purchased the same from any person authorized to sell at public
action, then any informality connected with or growing out of the
sale was cured by the lapse of five years. The court gave the
instruction asked, but added, "If the sheriff did not seize the
property, that is an informality which is not cured by possession
for five years." The counsel for the defendant excepted to this
modification.
There was a judgment for the plaintiff below, whereupon the
defendant sued out this writ of error.
Page 94 U. S. 8
MR. JUSTICE BRADLEY, after stating the case, delivered the
opinion of the Court.
Sundry bills of exception were taken in the course of the trial
of this action, but as the one quoted in the preceding statement of
the case was, in our view, well taken, and is decisive, it is
unnecessary to advert to them further.
By a law of Louisiana, passed March 10, 1834, sec. 4, it was
enacted:
"That all informalities connected with or growing out of any
sale made by a parish judge, sheriff, auctioneer, or other public
officer, shall, after the lapse of five years from the time of
making the same, be prescribed against by those claiming under such
sales, whether against minors, married women, or persons
interdicted."
This law continued in force until 1870, when it was superseded
by a general provision contained in the Revised Statutes of 1870,
sec. 3392, p. 659, and in the Civil Code, as published in that
year, art. 3543, the terms of which are as follows:
"All informalities connected with or growing out of any public
sale made by any person authorized to sell at public auction shall
be prescribed against by those claiming under such sale, after the
lapse of five years from the time of making it, whether against
minors, married women, or interdicted persons."
Other articles of the Civil Code of Louisiana on the subject of
prescription require that the person who sets it up in relation to
an immovable must have acquired the immovable in good faith and by
a just title. Thus, art. 3478 declares that "he who acquires an
immovable in good faith and by a just title prescribes for it in
ten years." Arts. 3484 and 3485 declares that by the term just
title, in cases of prescription, is not meant that which has been
derived from the true owner, but that which has been received from
any person whom the possessor honestly believed to be the real
owner, provided it were
Page 94 U. S. 9
such as to transfer the ownership of the property -- that is,
such as by its nature would have been sufficient to transfer the
ownership, if it had been derived from the real owners, such as a
sale, exchange, legacy, or donation.
The Supreme Court of Louisiana has frequently had occasion to
construe the effect of these laws.
In
Walden v. Canfield, 2 Rob. (La.) 468, where
prescription was set up under a title based on a marshal's sale,
the court said:
"The defendants have produced a regular judgment, writ of
execution, and a deed of sale from the marshal to their author;
and, under the well settled and repeatedly established doctrine of
our jurisprudence, that in relation to sales under execution, where
a purchaser shows a judgment, writ of execution, and sale, under
which he holds, his title will be considered as legal and valid, we
think that on this point the defendants have satisfactorily
complied with the requisites of the law, and that, as their title
being a just one, that is to say, one which of itself was
sufficient to transfer the property in dispute, it is such as can
legally serve as the basis of the prescription. It is true that the
plaintiff has attempted to attack the defendants' original sale on
the ground of informality in the other proceedings of the marshal;
but this, in our opinion, cannot change or in any way alter the
effect of the defendants' title, if they have really possessed
under it, during the time required by law to acquire the property
by prescription, before the institution of this suit, or, in other
words, before the alleged informalities were set up against the
presumed legality and validity of their title,"
In
Leduf v. Bailly, 3 La.Ann. 8, the same doctrine was
held where the irregularity complained of was that the sheriff's
deed did not purport to convey the interest of the party from whom
the plaintiffs deduced title. The judgment and execution were
against him and others, but the sheriff's deed omitted his name.
The defendants holding under this deed pleaded prescription, and
the court held it a sufficient title to base prescription upon. "No
evidence has been adduced," said the court, "to repel the legal
presumption that the defendants' possession commenced in good
faith."
So, in
Brien v. Sargent, 13
id. 198, want of
due notice of
Page 94 U. S. 10
seizure by the sheriff was held to be no obstacle to
prescription being set up by one who claimed under the sheriff's
sale, there being no evidence to impeach the defendant's good
faith, and he having shown a regular judgment, execution, and
sheriff's deed.
The subsequent case of
Robert v. Brown, 14
id.
605, shows what kind of objections to a judicial sale may render it
ineffectual as a basis of prescription. There a commission to sell
the property of minors was issued without any order of sale. The
court held that there was a total want of authority to sell, and
that, in such a case, the prescription of five years could not be
claimed under the statute, but that it only cured those
informalities which may occur in the execution of a decree or other
authority to sell. This case is analogous to that which would be
presented if a sale were made under an execution without any
judgment to support it.
From these authorities (and others to the same effect could be
cited) it is evident that although informalities occurring in a
sheriff's proceedings under execution may be good ground for
annulling a sale made by him if taken advantage of in time, yet
that if the sheriff has authority to sell, and does sell, and
execute a deed to the purchaser, the latter, if a purchaser in good
faith, may set up the prescription of five years under the statute.
Applying this rule to the case before us, we think the court erred
in holding that, if the sheriff did not actually seize the
property, it was such an informality as could not be cured by
possession for five years. The case of
Morton v. Reynolds,
4 Rob. (La.) 26, referred to by the defendant in error, which seems
to hold that the only informalities cured by five years' possession
are those occurring in the advertisement of sale, is overruled by
subsequent cases, and is contrary to the general current of
decisions made by the Supreme Court of Louisiana. The case of
Watson v.
Bondurant, 21 Wall. 123, was very different from
the present. In that case the question of prescription did not
arise. Bondurant, the mortgagee, procured the property to be sold
by the sheriff without any actual seizure or notice to Watson, who
was in possession, and bought the same himself, and then brought
his action to recover possession. Under those circumstances, it was
competent to Watson
Page 94 U. S. 11
to take advantage of any informality in the sale, and we held
that the want of seizure invalidated it. So in this case, if the
defendant in error had proceeded in due time, the informalities
relied on, if existing in point of fact, would probably have been
sufficient to invalidate the sale. But that is not the question
here. The question here is not whether the plaintiff in error had a
good title, but whether he had such a just title as the law of
Louisiana requires to lay the foundation of prescription, and of
this we think, under the statute, and in view of the authorities
cited, there is no doubt. He received a deed from a person who had
authority to sell, and that is regarded as just title for the
purpose of prescription.
This decision renders it unnecessary to examine the preliminary
objections raised by the defendant in error on the question of
supersedeas. The objection that the bills of exception were signed
after the term at which the trial was had is met by the fact that
the delay was made by the consent of the parties and the order of
the court, and whilst a motion for new trial was pending.
Judgment reversed and record remanded, with directions to
award a venire facias de novo.
