Hyman v. Bailey

Cole, J. This is a petitory action, conjoined with an action en declaration de simulation, to recover a certain tract of land, which plaintiff avers he purchased at Sheriff’s sale. [451] On the trial, defendant asked leave to call W. Waters, Jr. in warranty; and on the refusal of the Judge, a bill of exceptions was taken to his opinion. The court did not err; the call in warranty was offered to be filed, after the case had been set by consent, and called up for trial by the consent of counsel on both sides. It was in the power of defendant to have asked for the call in warranty at ap earlier date, and not to have waited until the permission to make the warrantor a party would have operated a continuance. Besides, Waters, in his sale, expressly limits his warranty to his own acts and those claiming under him; defendant had then no right to call him in warranty, because plaintiff does not claim under Waters ; but by virtue of a purchase made of the rights and title of defendant. There is, also, a bill of exceptions to the refusal of the court, to permit the defendant to “ establish, by authentic acts of sale to the deceased Merrick Maillon, in her lifetime, that she owed a valuable property in lands and slaves ; from the revenues of which, she was able to make the purchase of the land in controversy.” The court erred. One of the principal objects of the suit was to declare the sale to Maillon .simulated, and plaintiff, in his petition, alleged that “ she had neither means nor money to buy properly.” Defendant, as the administrator of her estate, was then entitled to contradict this averment, which was also sought to be sustained by proof. It is unnecessary now to express an opinion upon the merits of the cause, for plaintiff has shown no title, and he has no right to force defendants to exhibit their title, until he has established an adequate interest in the land to authorize it. Plaintiff pretends to have purchased the land at Sheriff’s sale, on the 7th of April, 1855, by virtue of an execution issued out of the District Court of the parish of Rapides, on a judgment of A. Lilly v. S. E. Cuny et al., wherein defendant, Bailey, was a judgment debtor. The only evidence of such a title is the Sheriff’s deed of sale of the land to plaintiff. This is insufficient. It is incumbent on a party, Claiming under a sale by virtue of a ft. fa., to produce the writ of execution, the Sheriff’s return, and the judgment. The Sheriff’s sale proves that the Sheriff pretended to sell certain property; but it is a mere executive act, depending for its validity upon the judgment of a competent court and an execution, issued in virtue of the mandate of the court. The presumption of omnia rede ada applies to the sale of a Sheriff, so far as the formalities of law are concerned, which his duty required him to follow in making the sale; but it is not a sequence from this, that he did not act in error, and make the sale under a forged copy of a pretended judgment. Sec. 3 of the Act of 1855, relative to Sheriff’s sales and writs of fieri facias, approved March 15th, 1855, gives the same effect to a copy of a Sheriff’s sale, duly recorded and certified, as to a duly certified copy of an authentic act; but does not make the original or copy sufficient proof of itself, of a title translative of property. Davis v. Wilcoxen, 5 An. 584. The judgment shows the nature of the decree of the court; the writ of execution is the authority given for making the judgment effective; and the Sheriff’s return shows what was done under the execution. Dede v. Boguille, 8 An. 138. [452] It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed. And it is further decreed, that this cause be remanded to the lower court for further proceedings according to law, and the principles enumerated in this opinion. And it is further decreed, that the appellee pay the costs of appeal ; those of the lower court to abide the event of the final decree.