Succession of Fertel v. Fertel

McCALEB, Justice. This is an action for a partition by licitation of ten parcels of improved real estate situated in the city of New Orleans, having an appraised value of $1,850,000. The property is owned in indivisión by tire Succession of Barney Fertel (on whose behalf the suit is brought by its dative testamentary executor), Mrs. Nettie Fertel, wife of Harry Warren, Mrs. Annie Fertel, wife of Leon Buhberg and Rodney Fertel. Joined as defendants, in addition to these co-owners, are David J. Pallet, tutor of Sheppard and Isidore Fertel, the minor children of the late Barney Fertel, and his surviving daughter, Mrs. Biuma Fertel, wife of Melville Wolfson. After alleging that the properties are not. divisible in kind and that it is neces — 311 — sary that they be sold for the purpose of settling certain debts of the late Barney Fertel, the petitioner prayed for a judgment decreeing a partition by licitation and that the sale be made by an auctioneer appointed by the court to the last and highest bidder “upon such terms as the Court may fix in order to effect a partition”. In due course, David J. Pailet, tutor of the minors Sheppard and Isidore Fertel, appeared and admitted in substance the allegations of the petition and prayed for judgment in favor of the dative testamentary executor of the Succession of Barney Fertel “ordering the property to be sold and partitioned as prayed for by him * * *”. Certain other defendants resisted the action but, after a hearing, their complaints were rej ected 1 and there was judgment decreeing a partition by licitation as prayed for and setting forth the mode by which it was to be effected. This judgment, which was rendered on March 3, 1953, ordered that each of the ten properties be sold separately to the highest bidder with the exception of the adjoining properties, 1036 Canal Street and 114 South Rampart Street and 118 South Rampart Street, which were to be offered en masse and, after being thus offered, they were to be again offered in globo with the adjoining property located at No. 1028 Canal Street, the auctioneer being instructed to-accept the higher of the aggregate of the separate bids by parcels or the bid as a. whole and “* * * to adjudicate same to the highest bidder or bidders, as the case-may be”.2 The judgment was signed on March 9,. 1953 and, within the delay allowed by law, Pailet filed a motion for a suspensive appeal to this court. Upon refusal of the judge to sign the order of appeal, he applied here for a writ of mandamus. An alternative writ was issued and thereafter the judge, conformable with our instructions, granted the appeal, which has since been perfected and is presently submitted for our decision. The complaint of Pailet is that the judge erred in ordering that any parcels of real estate be sold other than separately and. also that he was without right to instruct, the auctioneer to offer the property No. 1028 Canal Street in globo with the property bearing Nos. 1036 Canal Street and. 114 South Rampart Street and that numbered 118 South Rampart Street, and to-accept the highest bid of such offering,. — 313 — if that bid exceeded the aggregate of the highest bid for 1028 Canal Street and the highest bid for 1036 Canal, 114 South Rampart and 118 South Rampart. Appellee denies the validity of this contention and, at the outset, maintains that we should not even entertain the appeal because appellant has acquiesced in the judgment by pleading in his answer for the granting of the prayer of the petition for a partition sale of the properties “upon such terms as the court may fix”. He also suggests that appellant’s protest should not be considered as he failed to raise the issue in the lower court by filing an application for a rehearing. We do not regard these objections to be well founded. In the first place; it will not do to say that appellant acquiesced in any judgment the trial court might have rendered merely because he joined in appellee’s prayer for a partition by licitation on such terms as the court might fix. Implicit in such a prayer is the condition that the terms fixed by the court are to be legal- and that the discretion vested in the judge will not be abused. Furthermore, we know of no law requiring that an aggrieved litigant apply' for a new trial or a rehearing in a civil suit as a condition precedent to the taking - of an appeal. ■ And, while a contention neither pleaded nor passed on by the district court will not be considered on appeal, Weingart v. Delgado, 204 La. 752, 16 So.2d 254; Crichton v. Lee, 209 La. 561, 25 So.2d 229 and Dobrowolski v. Dobrowolski, 215 La. 1078, 42 So.2d 760, this rule is inapplicable in this case because the trial judge has heretofore examined appellant’s complaint. This is shown by the proceedings No. 41,216 of our docket, bearing the same-title as this suit. There, in his return the appellant’s application for a writ of mandamus to compel him to grant a suspensiveappeal, the judge sets forth that appellant appeared before him prior to the signing of the judgment and complained of the method adopted by him for the sale of the properties and he heard these -objections in the presence of all parties and overruled them. Hence, we pass on to a consideration of appellant’s complaint. Substantially his-claim is that, in partition sales such as this, all parcels forming distinct properties should be sold separately in order to attract the greatest number of bidders and also that the method of offering certain properties separately and then in globo is improper. The case of Grouchy v. Williams, 161 La. 909, 109 So. 545, is said to sustain this position. There is no inflexible rule governing the manner of offering parcels of real estate for sale in effecting a partition by licitation. Each case must depend upon its own particular facts with due consideration -being given to the nature of the properties, their relation to each other, their location and the like. Determination of these matters is vested, under Article 1336 of our LSA-Civ — 315 — il Code, in the District Judge upon whom rests the duty of regulating the sale in the manner most convenient and advantageous to the interested parties. That article provides: “The judge who decides on a suit for a partition and on the mode of effecting it, has a right to regulate this mode as may appear to him most convenient and most advantageous for the general interest of the co-heirs, in conformity, nevertheless, with the following provisions.” (Italics ours.) In Grouchy v. Williams [161 La. 909, 109 So. 547] the court, while recognizing the province of the judge under Article 1336 to regulate the mode of effecting a partition by licitation, pointed out that he must exercise this prerogative “ * * * in the manner which appears most advantageous for the general interest of the co-owners” and that his action in the premises is subject to review.3 In the case at bar, appellant assails that portion of the judgment directing the property numbered 1036 Canal and 114 South Rampart Street to be sold in globo with 118 South Rampart and then orders that these two properties be sold as a whole with 1028 Canal Street. These parcels are located in the business district of New Orleans; they adjoin each other and the commercial buildings erected on the land are rented to third persons. The property 1036 Canal Street and 114 South Rampart Street is one parcel, fronting 28.74 feet on Canal Street and 127.88 feet on South Rampart Street. The portion fronting on Canal Street is occupied by a drug store under a month to month lease; the rear portion of the property, bearing No. 114 South Rampart Street, is occupied by Reiner’s Loan Company under a lease, expiring at the end of 1962, for that building and the second floor of the property 118 South Rampart Street, which adjoins 114, having a frontage on South Rampart Street of 23.16 feet by a depth of 125.2 feet. The ground floor of 118 is occupied by a Mr. Phillips. Because of the lease in favor of Reiner covering 114 and the second story of 118 South Rampart Street, which carries a monthly rental of $1,333.33, the judge concluded that it would be impossible to sell the two properties separately as no one would be interested in bidding separately on properties burdened with one lease. No sound criticism can be levelled at the judge’s decision respecting these particular properties. Certainly nothing has been suggested by appellant to show that their sale in globo is not to the best advantage of the co-owners. The real objection of appellant is to the offering of these two — 317 — properties in globo with No. 1028 Canal Street after that property has been offered separately. Appellant says that the method of offering parcels of property at judicial sale separately, reserving the highest bids, and then offering them as a whole with the proviso that the highest bid of such offering will be accepted, if it exceeds the aggregate of the highest bids of the separate offerings, tends to stifle competition because those wishing to bid on the parcels separately are reluctant to do so as they know their bids will not be final and that persons financially able to bid in globo will refrain from bidding, when the properties are offered separately, in order to enable them to obtain the properties at a lower price, when they are offered in globo. However, no attempt has been made by appellant to submit expert evidence to establish the correctness of his contention. Therefore to adopt this view, would require that we accept the statement of his counsel, unsupported by authority, that this method of offering property for sale is necessarily detrimental to competitive bidding and will be disadvantageous to the co-owners. An independent investigation by us of the applicable jurisprudence has disclosed that the method of offering two or more parcels of land, first separately and then en masse, has been unanimously approved and those courts, which have considered the matter, have not found it to the disadvantage of the parties affected by the judicial sale. The rule is stated in 31 Am.Jur., Verbo “Judicial Sales”, Section 81, page 442, thus: “So, also, the officer may ordinarily offer the property in separate tracts, and then as a whole, and accept the latter bid if greater than the aggregate of the bids upon the separate tracts. The facts of each particular case must be considered and that mode adopted which seems best calculated to bring the largest return”. To the same effect is 35 C.J. Sec. 48, pages 36 and 37 and 50 C.J.S., Judicial Sales, § 20, pages 603 and 604. See also Union Trust Co. of New York v. Illinois Midland R. Co., 117 U.S. 434, 6 S.Ct. 809, 29 L.Ed. 963; Vollum v. Beall, 117 Md. 617, 83 A. 1095, Ann.Cas.1914D, 16; In re Haywood Wagon Co., 2 Cir., 219 F. 655, 135 C.C.A. 391; Miller v. Trudgeon, 16 Okl. 337, 86 P. 523; Vanmeter v. Vanmeter’s Assignee, 88 Ky. 448, 11 S.W. 80, 289; Webb v. Peterson, 148 Va. 718, 139 S.E. 249 and Godchaux v. Morris, 5 Cir., 121 F. 482, 57 C.C.A. 434. Accordingly, in the absence of proof to the contrary and in view of the concurrence of opinion of other courts that the method is acceptable, it would be presumptuous on our part to conclude that the trial judge has abused his discretion in ordering the sale to be conducted in this fashion. Counsel for appellant also assert that the method fixed by the judge for offering the properties will prevent him from participat — 319 — ing in the bidding on behalf of the minors because, whereas they have the right, under Articles 1343 and 1344 of the LSA-Civil Code, to become the purchasers of the hereditary effects at the partition sale by paying only the surplus of the purchase money over the portion coming to them, the minors’ share in their father’s estate is so small in comparison to the value of the property offered in globo that, even with the use of their inheritance, he would be unable to compete. There are many answers to this contention. Primarily, the fact that the minors’ inheritance is too small to enable their tutor to become a competitor in the bidding on the properties offered in globo is of no consequence, if the method adopted by the judge is not to the disadvantage of the co-owners. Indeed, we know of no reason why appellant should compete at all unless he so desires. The sale is not being made for the purpose of enabling the minors to acquire a particular parcel; it is for the interest of all the co-owners and its object is to dispose of the common property for the highest price that can be obtained. Moreover, the Articles of the LSA-Civil Code, 1343, 1344 and 2625, which permit the co-heirs to use their inheritances as an offset against their bids at the sale of the hereditary effects, apply only to the partition of the property of a succession. They are not appropriate in a case like this involving a partition sale by co-owners in which a succession happens to be one of the co-owners. Fabacher v. Fabacher, 214 La. 940, 39 So.2d 426 and cases there cited. The judgment appealed from is affirmed. Footnotes [1] These parties have not appealed. [2] The judgment also provided that the property numbered 200 South Rampart Street and that numbered 204-06-08-10 South Rampart Street be offered separately and thereafter en masse and that the same be adjudicated to the higher of the aggregate of the separate bids by parcels or as a whole. No particular objection is made to this portion of the judgment. However, if the complaint of appellant concerning the dual method of offering the properties is valid, the portion of the judgment affecting these properties would necessarily be subject to annulment. [3] It was there held that the judge erred in ordering the two tracts of land which were intersected by a public highway to be sold in globo rather than in separate parcels.