Nassan v. Nassan

[208] His Honor, JOHN ST. PAUL, rendered the opinion and decree of the Court, as follows: This is a rule on a judgment creditor to show cause why his mortgage should not be referred to the proceeds of a sale to effect a partition. Defendant in rule excepts that he was not duly served with a true copy of the rule because said copy had certain blanks therein not filled out. But defendant has not produced the copy served upon himself, and the fact that a certain copy on which the sheriff made his return does contain such blanks, is no proof that the same blanks existed in the copy served on defendant. Moreover the blanks in the copy returned by the sheriff appear to us immaterial, as they relate only to affidavits, which were unnecessary, and to other mortgage creditors in whom defendant had no interest. The exceptions were properly overruled. II. Defendant urges that certain transfers of the property between co-heirs were for the express purpose of divesting his mortgage rights. This is answered by the fact that no transfer between co-heirs could have such effect and further more by the fact that the transferees in this very rule have recognized his mortgage rights since they ask that his said right be referred to the proceeds of sale. III. It is further contended that the property was sold without appraisement and without expert evidence that the property was divisible in kind. This is answered by the fact that property sold to effect a partition is sold without limit and hence no appraisement thereof is necessary since this would be a vain and useless thing. [209] And the presumption is that the trial Judge had sufficient evidence before him to satisfy him that the property was not divisible in kind. If defendant claimed the contrary he should have shown it, i. e., that the property was in fact divisible in kind. Bayhi v. Bayhi, 35 An., 527 (529). IV. It is further contended that the property should have been sold in the manner prescribed for the sale of country property, that is, on a Saturday instead of a Wednesday, and after due advertisement in the parishes in which some of the property was situated. There is no merit in the contention; all the property was succession property, held in common between the heirs. Some of it was situated in the city and some in the parishes. The succession had been opened in this city and the proper place to seek the partition was in this city. C. P. 1022, Maguire v. Fluker, 112 La., 76 (101). And since the proper place to sell the property was in the Parish of Orleans the proper method of sale was that prescribed by law or custom in this city, and it is not pretended that this was not done. We know of no law or jurisprudence, and none has been cited to us, by which it is required that property which is to be sold in one parish shall also be advertised outside of that parish. (43 Ann., 321; 28 An., 354; 7 Rob., 144; 9 M., 461; 11 Rob., 53.) The fact of the matter is that defendant in rule if he wished to protect himself should have been more vigilant, and not have waited until this time, as he now does, seeking to overturn all that has been done before. To undo all this would simply be to burden the property with additional costs, to the advantage of no one, not even defendant himself. If the succession assets are sufficient to pay [210] the succession debts, and leave a balance for defendants’ judgment debtor defendant will get it'; otherwise he is in the same position as many other creditors, whose debtor’s property will not suffice to discharge their debt. But the proper time to investigate that question is when the proceeds of the sale are to be distributed. Opinion and decree, February 19th, 1917. The judgment appealed from is correct.