Choate Oil Corporation v. Glassell

• Decision Date: 29 December 1922
• Docket Number: 25384
• Citation: 96 So. 543,153 La. 715
• Court: Louisiana Supreme Court
• Parties: CHOATE OIL CORPORATION v. GLASSELL et al

96 So. 543

153 La. 715

CHOATE OIL CORPORATION v. GLASSELL et al

No. 25384

Supreme Court of Louisiana

December 29, 1922

Rehearing Denied April 30, 1923

Appeal from First Judicial District Court, Parish of Caddo; T. F Bell, Judge.

Suit by the Choate Oil Corporation against A. C. Glassell and others. From a judgment for defendants, plaintiff appeals.

Affirmed in part, and decree for plaintiff in part.

Wilkinson Lewis & Wilkinson and Thigpen, Herold & Lee, both of Shreveport, for appellant.

Hall & Bullock, of Shreveport, for appellees.

OPINION

DAWKINS, J.

Defendants were the holders and owners of notes of the plaintiff for a large amount, secured by mortgage upon certain oil and gas leases, and including "four completed oil wells, with all equipment for operating the same, including tanks and standard pumping rigs and all other improvements on said leases belonging to said mortgagor, whether specially described herein or not." The notes not having been paid at maturity, foreclosure proceedings were instituted. The demand and notice of seizure were properly served upon J. A. Thigpen, as the Louisiana Agent of the Choate Oil Corporation (hereinafter called the Choate Company), but because of some defect in the proceedings it was decided to make new service. Thereupon another demand and notice were issued and served upon one Albert P. Garland, as attorney of record for the Choate Company. The property was advertised for sale, and Joseph Reid Gas Engine Company intervened, claiming a vendor's lien upon certain machinery and appurtenances; and on November 11, 1921, the leases, together with all oil wells, machinery, appurtenances, etc., were adjudicated to A. C. Glassell and K. E. Merrin, for $ 45,000, out of which, the return recites, the costs were paid and the balance "applied on writ per receipts attached." Sheriff's deed was accordingly executed on the following day, November 12th, and recorded in the conveyance records of Caddo parish on the 17th of that month.

The Choate Company on November 26, 1921, filed suit to annul the said sale for the reason that no service of the demand to pay and notice of seizure had been made upon it,and prayed that the sheriff's deed be declared "null and without legal effect." The defendants in that suit first denied the allegations of the Choate Company, but subsequently filed an amended answer admitting the nullity, and judgment was rendered declaring the said sale "to be null and void and without legal effect." This judgment was signed December 14, 1921.

While the sheriff had noted in his return, as above shown, this sale, distribution of proceeds, etc., as a matter of fact, he had not returned the writ to the clerk's office and the property was still in the custody of his keeper. On December 1, 1921, after the filing of answers by the purchasers at the sheriff's sale admitting its nullity, another demand and notice were served upon Thigpen, the lawful agent of the Choate Company, and the same property was, on December 6th following, again advertised for sale on January 7, 1922. On the latter date, it was again bought in by Glassell et al. for $ 47,000, which the return recites was applied pro tanto to their claims, and sheriff's deed was again executed and recorded.

Plaintiff brought the suit covered by this appeal to annul the second sale, reciting the pertinent facts above related and seeking to have it annulled upon the following grounds, to wit:

(1) That the authority of the sheriff had "expired" or was exhausted when the first sale was made and recorded;

(2) That said sale and recordation of the deed operated as a release in fact and law of the seizure, and the sheriff was without authority to take any further proceedings, without obtaining a new order for executory process and serving a new demand to pay and notice of seizure;

(3) That said sale was not an absolute but a relative nullity, and, until set aside by judgment of court, was in full force and effect;

(4) That the sale was without legal effect because of the failure to obtain a new order of seizure and to serve a new demand and notice of seizure;

(5) That it was also null because 30 clear days had not elapsed between the date of the judgment of nullity (December 14th) and the sale (January 7th) because until annulled, the former sale had the effect of vesting title and possession in the purchasers, and prevented the sheriff from advertising the property for sale until the said judgment was signed.

(6) In the alternative, if the sale herein attacked is found to be valid, then that the mortgage foreclosed covered the leases alone, and did not include the oil wells, equipment for operating same, including tanks, gas engines, pumping rigs, and other improvements on said leases, for the reason that the resolution of plaintiff's board of directors authorizing said mortgage covered the naked leases only.

Defendant first pleaded judicial estoppel, based upon the fact that in the former suit to annul, plaintiff had alleged that the first sale was "illegal, null and void and without legal effect," that the court below had so adjudged it to be in that identical language, and plaintiff could not afterwards shift its position and claim the sale to have been only relatively null. Further, that plaintiff was judicially estopped from alleging that the said mortgage did not cover the oil wells, equipment, tanks, gas engines pumping rigs, and other improvements on said leases, for...