O'Hara v. Booth

The opinion of the court was delivered by DeBlanc, J. The defendant, Sarah E. Booth, was the owner of the ■square of ground bounded by Liberty, Howard, Washington and Fourth streets, in the city of New Orleans. Nicholas Connell, as transferee of ’one J. Fallon, and O’Hara, the plaintiff, were both creditors of Mrs. Booth for the cost of laying sidewalks, curbs and gutters, under contracts with the city — Fallon on Liberty street, O’Hara on Howard street, [818] Eallon’s privilege was recorded on the fourth of March 1872, O’Hara’s on the ninth of March 1876. Connell sued on the claim transferred to him by Fallon, -and, on the tenth of May 1875, obtained judgment against Mrs. Booth,for $669 71, with recognition of his privilege on the lot of ground above described. On this judgment execution issued and was levied in July 1875. The property subject to Connell’s privilege was seized, advertised for sale, and adjudicated to him for $1600, but on account of alleged informalities in the proceedings, said property was re-advertised, and, on the fifteenth of April 1876, re-adjudicated to Connell, for $300. On the twenty-fifth of March 1876, O’Hara brought suit against Mrs. Booth and Connell, on his herein-mentioned claim, and, on the third of May, obtained judgment against Mrs. Booth alone, for $820 28, withreeognition-of his privilege. His demand against Connell was rejected. It was after the first and before the second adjudication of the property to Connell, and while said property was under his, said Connell’s seizure, that O’Hara’s privilege was recorded and his judgment obtained. O’Hara issued execution upon his judgment against Mrs. Booth, and caused to be seized, as belonging to her, the lot which, already, had been sold to Connell. The sale, under O’Hara’s execution, took.place on the fifth of August 1876, and, at that sale, the property twice before adjudicated to Connell, was purchased for $100 by A. Hero, Jr. It was after this last adjudication, that O’Hara filed the rule in and by which Connell was called upon to show cause why the privilege securing the claim transferred to him by Fallon should not be cancelled. To this rule, Connell excepted on the grounds that such issues as it presented could not be tried during the court’s vacation, and that his rights on the property could not thus be collaterally attacked. In answer to these exceptions, O’Hara’s counsel contend, in their printed argument — • 1. That Fallon’s privilege was not recorded at the date fixed by the 3274th article of the Civil Code, and that, under a decision of this court reported at page seven of the twenty-seventh Annual, he was not entitled to any privilege whatsoever. 2. That the judgment of Connell, as transferee of Fallon, is an absolute nullity, for the reason that, having no privilege, he had no right to proceed against Mrs. Booth, an absentee, by the appointment of a curator ad hoc. 3. That said curator was appointed without a previous citation to Mrs. Booth, before it had been shown that she was an absentee, and that he, said curator — -though it does not appear that he was cited — answered Connell’s demand by a general denial, upon which, on the tenth of May 1875, judgment was rendered against Mrs. Booth. [819] Fallon’s claim against Mrs. Booth is not disputed; its rank alone is' contested. That claim, its amount and its character are recognized by the judgment of a competent court — that judgment was.executed inthepresenee of O’Hara; he protested, but irregularly, against the execution! under which Connell acquired title to the property, on which they botín allege and tacitly admit they had a privilege. Could O’Hara, disregarding the title so acquired, proceed to seize and’ sell as still belonging to Mrs. Booth, the property which, to his knowledge, had passed from Mrs. Booth to Connell ? He seems to think that he could. In this, he is mistaken. Mrs. Booth was absent from anc£ owned property in the State; she was, beyond any doubt, indebted toConnell, and, when sued by the latter, was properly represented by a curator ad hoc, on whom, as such, citation was served on the first of April 1874 There may be, in the proceedings which are the basis of Connell’s title, a slight inobservance of the rigid course which should be pursued, to bind absentees and justify the sale of their property; but, if they do-exist, most of the irregularities complained of, considering the evidence-now before us, would only authorize those defenses and actions personal! to the absentee, and do not import that absolute nullity, which, to be- ' pronounced by the court, needs but be referred to and suggested, and1 which, at any time and under all circumstances, may be urged by any-interested party. The curator ad hoc may seem to have been a little too hasty in filing-his answer; unexplained, that haste may leave the impression that Reacted before communicating with Mrs. Booth; but, had he corresponded with her, would she have imparted any information he had not, and would any additional information have changed the form and substance-of the curator’s answer ? That is not probable. He may have had reasons to believe that, in the interest of the absentee, to avoid the useless • expenses of a litigation which could be but uselessly prolonged, the immediate trial of a suit on an indisputable and undisputed claim was as-proper as desirable! This did, nor could, in no way, expose or affect. the rights of O’Hara. Mrs. Booth might, with what result, we are not prepared to decide,, assail as apparently irregular and suspicious two successive adjudications of her property to the same party, under the same execution; the first for sixteen hundred dollars, the last for only three hundred. That right, in a proper pleading and under proper allegations, her creditor might invoke and exercise; but he neither could, nor can, by mere suggestions in argument, ask of any court to ignore the existence of a title, derived from the execution of a judgment rendered after citation, the joining of issue, a trial, and the uncontradicted proof, if not of Connell’s [820] 'claim and privilege, at least oí the as yet undenied correctness of his claim. Instead of contending for a preference over the price of either the first or the second sale, O’Hara has chosen to proceed directly against the property, as if it had neither been seized nor sold under Connell’s execution; he has chosen to seize after an executed seizure, to sell after a previous sale, to acquire after the title thus acquired had, to his ^knowledge, passed from the seized debtor to one of her creditors — and, in its present form, his action can not prevail. Eor at least two reasons, plaintiffs demand should be disallowed: 1. If,' at'the date of the sale made under his execution, the title to the property was in Mrs. Booth, Hero’s bid of one hundred dollars was entirely insufficient to discharge the prior privileges and mortgages bearing on said property, and its adjudication at that price was absolutely void. C. P. 684. 2. Whether Eallon’s transferred claim was or was not properly certified and recorded, Connell, by his seizure, which antedates the recording of the evidence of O’Hara’s contract, was invested with a privilege which entitled him to be paid by preference to all other creditors of Mrs. Booth, out of the price of the property seized. C. P. 722; 27 An. 290. It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and it is hereby annulled, avoided and reversed, and plaintiff’s rule dismissed at his costs in both ogurts.