Cunningham v. Steidman

• Decision Date: 12 May 1913
• Docket Number: 19,394
• Citation: 133 La. 44,62 So. 346
• Court: Louisiana Supreme Court
• Parties: CUNNINGHAM v. STEIDMAN et al

62 So. 346

133 La. 44

CUNNINGHAM v. STEIDMAN et al

No. 19,394

Supreme Court of Louisiana

May 12, 1913

Rehearing Denied June 9, 1913

Ponder & Ponder and Bankston & Inman, all of Amite, for appellant.

R. C. &amp S. Reid, of Amite, and F. W. Sherman, of Ponchatoula, for appellees.

OPINION

PROVOSTY, J.

Plaintiff alleges that under a writ of fi. fa. issued upon a judgment rendered against him in favor of Edwards Bros., Limited, his homestead was seized, and sold at public sale, and was bought by one A. M. Edwards, who afterwards sold it to M. T. Tucker who, in turn, sold it to the defendant; that said sheriff's sale was null, because made in violation of article 245 of the Constitution, which provides that 'no court or ministerial officer of this state shall ever have jurisdiction, or authority, to enforce any judgment execution, or decree, against the property exempted as a homestead, except for the debts above mentioned in numbers 1, 2, 3, 4, and 5, of this article'; that the debt for which said judgment was rendered was not one of those thus excepted; that said judgment was obtained upon citation served upon his wife at his home while he was absent from the parish of his domicile; that the date of said sale was December 12, 1908, and that from that time up to the filing of this suit on March 6, 1912, he was not financially able to bring suit to recover his said homestead; that neither he nor his wife ever waived their said homestead rights; that said property was sold at two-thirds of its appraisement upon an appraisement of $ 1,200 when it was worth $ 2,400.

The defendant filed an exception of no cause of action, which was sustained, and plaintiff has appealed.

The plaintiff contends that the said provision of the Constitution taking away from the courts all authority to cause a homestead to be sold being a prohibitory law, and, whatever is done in violation of a prohibitory law being null and void, said sheriff's sale is null and void.

There is no answer to this logic; but unfortunately the infirmity and imperfection of human nature will not allow of the affairs of society being regulated always on strict logical principles. In practice, in the interest of public order and the stability of titles, multa fieri prohibentur qu facta fuerint obtinent firmitatem. Gibson v. Foster, 2 La.Ann. 503. If the question of homestead vel non or the question of the property sold not having been liable...