Barelli v. Gauche

Taliaferro, J. This is an action brought by the plaintiff to recover valuable real estate in the city of New Orleans, bounded by Camp, St. Francis, North and Poydras streets, embracing the ground upon which stands the edifice known as the Moresque Building. This property, it appears, was sold under execution in 1865, as belonging to the plaintiff; the execution having issued on a judgment obtained against him for the sum of seventeen thousand five hundred and eighty-three dollars and forty-nine cents, with interest, by Jamison. The plaintiff alleges that the sheriff’s sale, purporting to be an adjudication of the property to the defendant, is null and of no effect; that plaintiff was not thereby divested of title, and that the defendant consequently acquired none. The principal grounds alleged as rendering the sheriff’s sale null, are: That no seizure of the property was ever made by the sheriff; that the sale was made after the expiration of the fieri facias, no duly certified copy thereof having been issued within twenty-four hours after the fieri facias was returned; that the amount bid at the sale did not exceed the amount of prior mortgages, and no adjudication could legally take place. The answer is a general denial. The defendant avers that, as purchaser of the property sued for, he has paid in extinguishment of the price and in discharge of debts due at the time of the sale by the plaintiff, and bearing mortgage and privilege on the property, all that was legally exigible, a sum amounting to one hundred and forty thousand dollars, and which equity requires the plaintiff should have tendered to the defendant before the institution of this suit. [325] This plea in bar of the action must be sustained. No tender of the amount paid by defendant is shown to have been made, and this,, we think, was essential to enable the plaintiff to prosecute this suit. 6 N. S. 684; 8 N. S. 162, 175, 210 ; 3 La. 541; 12 An. 251; 21 An. 425, and authorities there cited. Rev. C. C. 1912. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that this suit be dissmissed at plaintiff’s costs.