Florance v. Bachemin

The judgment of the court was pronounced by King, I. Florance obtained a judgment against Jacques Bachemin, which was executed upon several lots of ground of the debtor. At the sheriff’s sale the property seized was adjudicated to Jacques Bachemin and Theodule Bachemin, children of the judgment debtor, who refused to pay the price of adjudication, on the ground that they had a mortgage on the property superior to that of the plaintiff in execution, and for a sum exceeding the amount of their bid. The sheriff proceeded to readvertize the property for sale, whereupon the [175] purchasers took a rule upon him and upon Florance, to show cause why a. title should not be made to them of the property adjudicated. In their application for the rule they allege, that a judgment has been rendered in their favor for $3995 88, against their father and natural tutor, Jacques Bachemin, recognizing a tacit mortgage in their favor for that sum, which mortgage originated on the 25th of June, 1833. Other averments were made, which it does not become important to notice. On the day fixed for the trial the counsel of Florance was absent, and the rule was set down for a later day, when the counsel of Florance again failed to appear. In his absence the counsel for the plaintiffs in the rule proceeded to a trial, which resulted in a judgment making the rule absolute, and ordering the sheriff to execute a deed to Jacques, and Tkeodule Bachemin, for the property adjudicated to them. Florance moved for a new trial, on the following grounds: 1st. That he was not notified of the continuance of the rule, and that his counsel was unable to ascertain the day assigned for its trial, although he had examined the minutes of the court for that purpose. 2d. That testimony adduced on the trial was illegal and inadmissible. 3d. That the parties had no right to-proceed by'ruler or to suspend a sale by such proceedings. The motion was overruled, and Florance has appealed. The conclusion at which we have arrived upon the second ground urged by the appellant will render it unnecessary'to consider the other points presented. The plaintiffs’ offered in evidence the record of the suit in which they obtained a judgment against their father and natural tutor, upon the confession of the latter. That judgment fixed no date at which the father became the debt- or of his children, or at which the tacit mortgage of the latter attached, and was obtained subsequently to the judgment in favor of Florance. The record of a former suit between Bachemin, the father, and Florance, was also offered in evidence. It is only by an examination of' the testimony used on the trial of those causes, and on file in the records, but not separately offered as evidence, that the claim and tacit mortgage of the plaintiffs’ can be fixed at a date anterior to that of the judgment obtained by Florance. The testimony upon which the judgments in those proceedings were rendered formed no part of the records offered, and did not become evidence between the parties to this cause by the introduction of those records. Baptiste v. Soulié, 13 La., 268. Nor could the testimony upon which the judgment in favor of the minors was founded have been received or considered in this cause by the judge if it had been separately offered, being the confession of the father, who cannot be heard as a witness for or against his child. C. C. art. 2260. In the absence of this, which is the only testimony relied on to fix the date of the tacit mortgage, the judgment of the District Court is unsupported by evidence. Justice, in our opinion, requires that the cause should be remanded. Itis therefore oi'dered that the judgmenit of the District Court be reversed. It is further ordered that the cause be remanded fora new trial, the appellees paying the costs of this appeal!