Nichols v. McCall

Oole, J. This suit was instituted on the 7th April, 1855, by Mrs. Martha C. Nichols, widow of the late Nathan Morse, and Isaac E. Morse, to set aside a judicial sale made on the 24th June, 1845, by the Sheriff of New Orleans, under an order of seizure and sale at the suit of the Union Bank of Louisiana. Mrs. Martha C. Morse having- died during the pendency of the suit, the action was revived and prosecuted by Isaac E. Morse, her son and only heir, as the sole plaintiff upon the record. There was judgment in the lower court and in favor of plaintiff. [216] The principal grounds of attacking the sale are the following : 1st. That no notice of seizure was served upon petitioners. The Sheriff’s return and the Sheriff’s deed to the original purchaser, R. C. Cammaclc, set forth, that all the legal notices were issued. The burden of proof was upon the present plaintiffs to establish the falsity of this recital, though it involved a negative. Gibson v. Foster, 2 A. 508; Fleming v. Conrad, 11 M. 301. The correctness of the Sheriff’s return has been sustained by affirmative proof, on the part of defendant, so far as it was possible under the circumstances. D. Augustin, then Sheriff, states that L. H. Sere, the deputy who made the return, and G. H. Tobin, the deputy who served the notice of seizure, are both dead, but the entry , in the Sheriff’s book,, in the handwriting of Tobin, was offered in evidence to show that notice of seizure was served upon Mrs. Martha C. Morse personally on the 16th January, 1845. ' This is also corroborated by Mr. Denis, the attorney at that time of the Bank, who directed the Sheriff to have the notice served on her personally, as she was then in New Orleans. As to the notice to Isaac E. Morse, Mr. Cenas, his curator ad hoc, states : “ In relation to notices of seizure, witness does not recollect whether he received any or not, but he was aware of the proceedings that were going on.” The Sheriff alleges all? legal notices were given, and it is incumbent on plaintiffs to prove that this return is incorrect, for all judicial proceedings are presumed to be regular until the contrary be shown. Hubbell v. Clavum, 13 La., 496; Leibem v. Forster, 2 Ann., 503; Gentile v. Foley, 3 Ann., 146. In the case of Grant v. Walden, Mr. Justice Bullard observed : “ The court is unanimous in adhering to the principle that the Sheriff’s deed and return, upon the execution, are prima facie evidence of title in the purchaser at Sheriff’s sale, and consequently that he who seeks to annul an alienation must show that the formalities required by law were not complied with.” Another objection is, “ that no demand of payment was made by the Sheriff.” There is no law .that requires a demand to be made. Ursuline Nuns v. Depassau, 7 N. S., 645. The third objection, “ that the property was sold without the benefit of appraisement,” is contradicted by the Record. The other principal objection is that, “the Sheriff’s pretended seizure of said property was made after the return day of said writ had expired.” There is no evidence to substantiate this objection, which is based upon the phraseology of the Sheriff’s return, which says: “I seized and advertized the within described property to be sold on Saturday, 15th March, 1845, but. the same could not be sold, it having been stopped by plaintiff’s order ; and again I seized and advertised the property,” etc., for the 24th June, 1845. The plaintiff’s construction of the return is, that when the Sheriff was ordered to stop the sale, advertised for the 15th March, he released the property from seizure, and that before he again seized it, the return day of the writ had passed. But such a construction is against the presumption that the Sheriff executed the writ according to law, and is not warranted even by the Sheriff’s expressions. The Sheriff was ordered to stop the sale for the 15th March, but it is not stated nor alleged that he was ever directed to release the property from seizure. It is a forced implication from the terms, that he “ again seized,” that he had released the previous seizure without authority from the plaintiff and against his official duty under the writ. [217] If against every reasonable or legal presumption the Sheriff did in fact abandon his first seizure, it was incumbent on the plaintiff to establish the fact by proof and not by strained inferences. Even if the Sheriff did in ignorance of his duties again seize the property, this second seizure could not affect the validity of the first, as long as he did not release the previous seizure and did not return the writ, and there is no evidence to show that he either released the first seizure or ever returned the writ. The first seizure being legal then remained in force, and the second could not affect it, for it was useless. The words “ again I seized,” seem to be an unhappy form of expression on the part of the Sheriff to show that he again proceeded to act under the seizure that he had already made. Yery few Sheriffs are accurate grammarians, and it would be unwise to annul a sale on account of an inference from such an expression as this, that he had violated the law, when this conclusion is expressly contradicted by his own return, for he avers in his return that he fulfilled all the requisite formalities, and that all the legal notices were given. The circumstance that the sale of the property did not take place till after the return day of the writ is not material; a legal seizure having been made, the Sheriff was warranted in retaining the writ till the sale was finally effected. Sheldon v. Canal Bank, 11 Rob. 181. The plaintiffs cannot complain of the change of the terms of sale, because they were more favorable to them than in the first advertisement, and we may fairly presume the Bank was induced to stop the sale on the loth March, and to readvertise the property on other terms by the acts of the plaintifls and of their duly authorized agents. We consider the validity of the sale to be established without any reference to the alleged ratification of the sale by plaintiffs, or to the plea of prescription of five years. It is urged that the testimony of II. B. Cenas was improperly received in a proceeding which involves the title to real estate. The power of attorney, however, under which Mr. Cenas was authorized to act on behalf of the plaintiff here, is in evidence, and his acts in that capacity are the acts of his principals. He exhibited his power to the Bank. He called the attention of the Bank to the desire of the parties to have the property sold in separate lots, and on some credit, and he attended at the sale and acquiesced in the whole proceedings: All this is matter properly proven by parol, but the effect is to estop the plaintiffs in the present suit. It has often been held, that if a man stands by and is silent while his own property is being sold, and suffers another to become the purchaser, or if, by his acts, his conduct, or Ms words, ho causes another to believe in a certain state of things, and induces him to act on that belief, he will be estopped by such proceedings on Ms part. Marsh v. Smith, 5 Rob., 518; Blanchard v. Allain, 5 An., 368. It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and it is further ordered, adjudged and decreed, that the demand of plaintiffs be rejected, and that they pay the costs of both courts.