Emerson v. Fox

Martin, J. delivered the opinion of the court. The appellee claims the dismissal of the appeal, because the bond is not legal nor sufficient, and not in conformity with the judge’s order. The judge’s order directs bond to'be given for an amount exceeding the amount of the judgment by one-half, conditioned as the law directs, so as to stay execution; or in the sum of one hundred dollars conditioned to pay costs, if the appeal be not taken to stay execution. The condition of the appeal bond is that of bonds given with a view to stay execution; but the sum mentioned in it does not quite exceed the amount of the judgment by one-half. The appellant has contended that as the bond is for more than one hundred dollars, it enabled him to sustain a devolutive, though not a suspensive appeal. The judge made his order in the alternative if the bond was conditioned as the law directs so as to stay the execution, it was to be given for a sum exceeding by one-half of the amount of the judgment; otherwise it was to be given for one hundred dollars, conditioned to pay costs. The appellants chose to give bond under the .first alternative, conditioned as the law directs to stay execution, i. e. for the payment of the judgment; but he contends, that as payment of the judgment includes the payment of the costs, that the bond is for the payment of costs; and is not the less good because given for an amount exceeding that fixed by the judge for air appeal merely devolutive, and as from the circumstances of the insufficiency of the sum, the appeal is not suspensive, it must be sustained as a mere devolutive one. In this position we agree. In the ease of Ross vs. Pargoud, ante, decided last year, we held,a bond for a suspensive appeal, which was for a less sum than that fixed by the judge, could not support a devolutive appeal, although for a sum evidently [182] more than sufficient to cover costs. In that case the judge had named but one sum in his order. He had not, as' in the present case, given the appellant the alternative of two bonds, one for a sum of one hundred dollars to cover costs; and one for a sum to enforce the payment of the judgment. In the present case the bond is given'for a larger sum than ordered in one of the alternatives. In the former case there were not two alternatives. The judge had fixed but one single sum as the amount of the bond ; and the appellant did not perform the condition on which the appeal was granted by giving bond for a less sum. The appeal must, therefore, be retained as a mere devolutary one. On the merits the appellants intervened in order to claim the property attached, alleging it to be their own. They averred that the premises, a house and lot in the town of Alexandria, were conveyed to them by an act sous seing privé in the state of Alabama, on the sixth of July, 1829, by the defendant, who on the eighteenth of August following, acknowledged it in the court of the county of Lauderdale, in said state, where it was ordered to be copied. That said bouse and lot were attached in the present suit as the property of the defendant, their vendor. They alleged that the bond and affidavit annexed to the plaintiff’s petition were insufficient and illegal; prayed that the attachment might be set aside, and that if sustained in whole or in part, they might be declared to have a privilege for a sum of money paid by them to extinguish a mortgage which existed on the premises at the time of the purchase. The attachment was sustained. Judgment was given for the plaintiffs against the defendant; the premises were directed to be sold to satisfy it; and the intervening party was allowed a privilege on the proceeds of the sale to the amount of the sum paid in extinguishment of the mortgage. They appealed. An intervening party has no right to take advantage of the insufficiency of the oath or bond on which process of attach [183] ment issues. The nullities arising therefrom are relative only, and the defendant alone can urge them. 4 Martin, N. S. 487. As. acts sous seing privé have no date or effect against third persons, it is clear the attachment was properly levied, before the registry of the sale to the intervening party. But they contend they acquired a complete title by the registry in the parish judge’s office; and they contend that as an attachment gives no lien to the attaching creditor, their title was complete against the plaintiffs; the defendant’s property became theirs before judgment, and the court erred in directing its sale to satisfy the judgment. It is true the Code of Practice, art. 724, says, provisional seizures give no privilege to those who have made them, till they have obtained .judgment and order of execution on the property provisionally seized. The corresponding French part of the text uses the expres-' sion, “Les Saisie arréts” (attachment) instead of provisional seizure. The articles 264-5 of the Code of Practice declares that the property attached “ shall be subject to satisfy such a judgment as may be rendered against the defendants.” It being evident from the phraseology of both texts of the Code of Practice, that the English part is a translation of the French. We have been in the habit of attending to the latter much more than we do to the French part of other laws. But in the present case, as both parts of the code in articles 264-5, subject the property attached to the satisfaction of the judgment thereafter to be obtained, we cannot allow the French part to control the other in a manner that will contradict the evident and manifest intention of the legislature in the former articles, and enable the defendant to destroy the effect of the attachment. Further, the contract of sale is perfect as to the parties by their agreement before the tradition. Louisiana Code, 2431-ut this tradition is necessary to vest the property in the endee. This has been so very often decided in this court, hat a reference to particular cases is unnecessary. But the aw considers the tradition or delivery of immoveables as [184] always accompanying the public act which transfers the property. Ibid, 2455. From this general provision those cases must be excepted in which there is an evident legal obstacle to the delivery. The law cannot consider that as done, which cannot be legally done. In the present case the house and lot being in the possession of the sheriff at the time of sale, it is clear the vendor could not make a tradition or delivery of them without violating the possession of the sheriff; and it is clear the appellants cannot be allowed to defeat the plaintiffs’ suit in this manner. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.