McDonough v. Elam

Martin, J. delivered the opinion of the court. The plaintiff or mortgage creditor of the defendants, obtained distinct writs of [490] seizure and sale. Mooney obtained writs of injunction, on the ground that he had bought part of the premises at a treasurer’s sale, for collection of taxes. The cases were consolidated; judgment was given against the intervening party, and he appealed. He claimed title under two deeds, for tu'dce town lots in the parish of Jefferson, in each one. It was admitted, that one of the defendants was the vendee of the appellee, for twenty-four, and the other for thirty-six lots, in the town of McDonough, in the parish of Jefferson, and that the lots sold by the sheriff made part of those sold by the plaintiff. The appellant’s counsel urges that his client had bought one undivided half of the twenty-four lots owned by one of the defendants, and one undivided third of the thirty-six owned by the other. The appellee cannot be prevented from proceeding to the sale of the mortgaged property or part thereof, unless it be shown that there has been a legal alienation. It is not pretended that there was a voluntary one. A forced one can have no effect, unless it has been made according to law. A sher¡ff can_ videae part ofda tira^nfthena'n-hlsWised^a suf! ficient sura’ We are not acquainted with any difference 1 , ' i between a forced sale for taxes, and one under si ft. fa. except the mode and period of adver-rising, and the form of the deed. .'A sheriff must seize the property he sells, arid have it ready to show, or point out to the purchaser that he may possess himself of it, if it be susceptible of actual possession. He cannot* sell an undivided part of the defendant’s property or cháttel or piece of land, For rhány a purchaser would be deterred from bri'ying' that of which he could not obtain the possession without entering into a contract, or instituting a law suit, and the defendant, though he hiust submit to have a determinate and specific part of his property taken away cannot Pe compelled to have a co-owner unnecessarily and gratuitously imposed on him, with, whom he must have á voluntary dr-legal partition. In the present case less than ten dollars were due by one of the parties and- —— by the other, he therefore should have begun by selling one-lot and then another, till he had raised a sufficient sum, or at least put up one determinate square, without selling at once, twelve indefinite lots. [492] Surely, if a man has twenty negroes on whom taxes are due, and one of these may be , | 111 l *p . taken and sold — and more n necessary: but tj,je ga|e one twentieth of all the slaves,, would, likely be productive of unnecessary sacrifice.to the owner,and trouble to him and the purchasers. He who sells his own property, may do So;' in any manner which will be agreed on by a vendee, but an officer who makes a forced sale has no right to carve out any particular estate .unnecessarily and gratuitously, withr out the consent ,of the owner., Weconclu.de that the sale made by the treasurer, was irregular, and did we!doubt the defendant’s title to any specific part of the property, nothing prevents the plaintiff from proceeding with his writ ofseizure. It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.