Delee v. Watkins

Martin. J., delivered the opinion of the court. The two first named defendants are sued as maker and endosser of a promissory note, given for the price of a lot, secured by a mortgage on the premises. Gordon, the third defendant, who purchased the lot at a sheriff’s sale for taxes, is charged with having combined with the maker of the note, for the purpose of defrauding the plaintiff, and causing the lot to be sold for taxes pretended to be due, when Gordon purchased it for the taxes and costs only, in a sale which is averred to be fraudulent. The petition concludes with a prayer for judgment against the maker and endorser, and that the plaintiff’s mortgage may be declared to be superior to Gordon’s claim; that the sale of the lot to him may be declared to be fraudulent and void; and that it may be decreed to be sold to satisfy the plaintiff’s demand. The general issue was pleaded : there was judgment against the maker and endorser, and in favour of the other defendant. The plaintiff appealed. The statement of facts shews, that the signature of the [309] maker and endorser, the protest and notice, were proven, as well as the mortgage of the lot for the security of the price. The tax list for the year 1828, the lot having been sold in the month of October of that year, was produced, showing the taxes due by the owner of the lot, the then vendor and maker of the note, as well as the sheriff’s deed of sale to the last defendant. The charge of supportecT'hy ai-lesins the neg-who sold in com- —;-.-- thefofmaiities^re-quired by law, unless it be shown that the party charged was cognizant or his non compliance or knowingly availed himself of [309] The appellant’s counsel has urged that the judgment is erroneous, as it does not decree the sale of the mortgaged premises — La. Gode, 3360 — as the sheriff’s sale is not shewn to be good: as proof is not made of any previous advertisements, and the seizure was illegal, as the premises had passed into the hands of a third person, before the assessments or the tax became due. That the sheriff sold for all the taxes due by the owner of the lot, including the parish tax, for which there is no lien; and the lot could not be sold until after a return that no personal property could be found. The appellee’s counsel has urged that, if the plaintiff has a claim superior to the purchaser’s, he ought to have exercised it in an hypothecary action; the sale of mortgaged premises, not authorizing the mortgagee to demand that it be cancelled, but only that, notwithstanding it, the premises be sold to satisfy him — that the lien of the State for taxes was superior to the plaintiff’s mortgage. — 2 Moreau's Digest, 456, sec. 20. It does not appear to us that the District Court erred. The rescisión of the sale was asked on a charge of fraud, collusion and combination, between the defendants. On this, the burden of the proof, lay upon the plaintiff. Fraud must be proved. Till some evidence, from which it may be held to result be administered, the party against whom it is alleged, cannot be called on to disprove it. Here irregularities, in the sale, on the part of the sheriff, are alleged— these may affect the sale, but do not show any fraud on the part of the-defendant. The issue is fraus vel non, and can [310] not be supported by alleging the neglect of the officer in compjyjng any 0f the formalities required by law, unless it be shown that, the party charged was cognisant of thenffor knowingly availed himself of them. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs, aamiaaflgiiwit