Dobard v. Bayhi

The opinion of the Court was delivered by Manning-, J. Luc Dobard had executions issued upon several judgments, obtained against tlie defendant Bayhi, which were levied upon [135] Ms property, and advertisement made of its sale. Shakspeare, Smitli & Co. were also judgment creditors of Bayhi with the advantage of a registry of their judgments prior to the plaintiff’s, and they filed their third opposition Before the sale, asserting their superior lien, and praying that the sheriff he ordered to retain in his hands out of the proceeds of sale §1625, the amount of their claim. The sheriff sold the property pursuant to advertisement, and the adjudication was made to Luc Dobard for $3333 33. The pi oces •verbal of the sheriff states that “none of the proceeds were paid over to him, but the same were retained by Luc Dobard.” When the opposition came on for trial, the plaintiff answered that no title had been made to him, the adjudication had not been perfected, and no proceeds of the sale had been paid to the sheriff, and there was nothing therefore out of which to pay anyone. This was followed by a supplemental answer alleging that “the seizure was abandoned through the sheriff,” and that no satisfaction of the judgments had been entered on the docket, and none made, and that the judgment of the Supreme Court on a rule to cancel mortgages left the plaintiff in the same position he has always been in, with his judgments unexe-cuted. How such pretensions can be set up by the party who provoked these judicial proceedings is beyond comprehension. The plaintiff provoked the sale and bid in the property, and did not p>ay his bid in cash, doubtless because he was the judgment creditor, awaiting the trial of this opposition before paying. The attempt to foil the third opponent by pleading that no money was paid on the bid, when the pleader is the man who should have paid it, and no title had been made, when he is the person who alone can demand it shall be made, is to trifle with the process of the law. The plaintiff, in the partition suit in the record, set up his purchase as adjudicatee and purchaser at the sale above mentioned, and claimed that he was owner of the property thus bought, and prayed that he be subrogated to all the lights of his debtor, and the court so ordered. If there is anything to break the force of this judicial assertion of ownership, and judicial decree maintaining it, we have not seen it. The sole source of the ownership is the sale provoked by the plaintiff, and the adjudication thereunder. That adjudication is his title. If he had been the first mortgage or judgment creditor for an amount sufficient to consume the bid, there would have been no need to pay any cash. With a competing creditor claiming priority of payment, and an order of court for service of his process, and service made, the detention of the bid, or so much thereof as was ordered in the hands of the sheriff was the proper thing to be done. That is what was done, except that the sheriff permitted the bidder to keep it. [136] There, is no escaping the liability for the amount of the opponent’s judgment, it primed the plaintiff’s judicial mortgages. The judgment debtor has no other property. Code Prac. arts. 301, 402; Deneufbourg vs. Didion, 7 A. 344. The sheriff should have compelled the plaintiff to comply with his bid, to the extent of the sum which the court had ordered him to retain in his hands. .Upon non-compliance, his duty is pointed out. Code Prac. art. 689. But the fact is, that the whole affair was managed in the way it was to suit the plaintiff himself. His attorney directed everything. The money was left in the plaintiff’s hands because it need never go out of them, unless this opponent could draw it with the magnet he is now using. The sheriff left it there at his risk. Walker vs. Allen, 19 La. 307. His plain course was to re-offer the property if the bid was not paid. Stoute vs. Voorhies, 4 La. 392; Galliee vs. Garcia, 2 Rob. 319. He is bound with the plaintiff to the ranking mortgage creditor for his claim, duly notified him by the court. This transcript can be read only with difficulty. The transcripts that have lately come up from the court for Placpiemines parish are written with an ink that is scarcely visible. In future, transcripts that are thus written will be returned to the clerk of the Plaquemines court with directions to rewrite them legibly, and this will be done at his expense. No fees will be allowed for the rewriting'. It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that the third opponents have and recover of the sheriff O. V. Thibaut and the plaintiff Luc Dobard in solido the sum of sixteen hundred and twenty-five dollars with interest as set forth in their judgment, and the costs of both courts.