Losee v. Sauton

Ludeling, C. J. This suit was commenced by an injunction to-restrain the sheriff from selling the undivided half of a tract of land, under an execution issued in the suit of Santón-, tutor, n. W. J'. Beatty, on the ground .that the property belonged to the plaintiff. On the trial, the court ot the first instance dissolved the injunction without. [371] damages. The plaintiff has appealed, and the appellee has asked that the judgment be amended by allowing damages. The plaintiff alleges that his title is derived from his purchase at sheriff’s sale, under an execution against W. J. Beatty. It appears from the record'that at that sale the plaintiff was the last and highest bidder, that the sheriff refused to make him a title because he thought he had erred in selling an undivided half oí the property when he had advertised ihe whole for sale, and he had been enjoined from selling one undivided half thereof. ■ On a rule'taken against the sheriff he was ordered to make and deliver to the purchaser a title according to law, “ on his paying the price.” Upwards-of five months after this judgment had been rendered, the plaintiff in this suit having failed to pay the price, Sauton, tutor, caused an execution to issue against his debtor, Beatty, and the property previously knocked off to Losee, the plaintiff, was seized and advertised for sale. The claim of the tutor, Sauton, was secured by a legal mortgage on the property, and might have been proceeded against in the possession of Losee, if he had paid the price and received a title, which, however,- he has failed to do. It is clear that Losee can not have a title to the property hid for by him at the sheriff’s sale until he pay the price (2 La. 360); and it is equally clear that it was his duty to pay the price withm a reasonable time after the judgment which ordered the sheriff to make him a title on his paying the price. The payment of the price is a condition precedent to his getting a title. C. P. 689. In Stout vs: Voorhies et al., this court said: “ It is proper, however, to settle a previous question raised by the plaintiff’s counsel relating to the right acquired by the bid of the former purchaser, although he did not immediately .comply with the condition of the sale, which was cash. In support of this right, reliance is liad on the articles of the Code of Practice, 690, 695, and on the articles of the Louisiana Code, 2588, 2590. The provisions of the Louisiana Code relate to sales by auction, both to voluntary and forced sales, but we are of opinion that the article 2589 is particularly applicable to voluntary sales, as is also the preceding article. The Code of Practice relates to sheriff’s sales, and according to the articles cited an adjudication has the effect of transferring to the purchaser all the rights of the party in whose hands the property was seized, and the sheriff is allowed three days, within which he must make an act in form. . This transfer of rights does not, in our opinion, take place, and consequently lhe officer is not bound to perfect the sale by an act translative of them to the purchaser, unless the latter has complied with the conditions of such sale. The condition of the adjudication in the present instance was, that the purchaser should pay cash,” etc. 4 La. 395; 3 La. 475. The plaintiff has [372] made no offer to comply with his hid, and the sheriff did not have to put him in default. C. P. 689; Branner & Co. vs. Hardy et al., 18 An. 537. But the evidence shows that the sheriff told him he was ready to make him a title when he paid the price. We think the equitable remedy of injunction has been abused in this case, and the defendant is entitled to damages. It is therefore ordered and adjudged that the judgment of the lower court be amended so as to give the defendant judgment against the plaintiff and John Bogan, in solido, for three hundred dollars, attorney’s fees and costs of this appeal.