Miles Planting & Mfg. Co. v. Ware

Decision Date25 February 1918
Docket Number21133
Citation78 So. 104,142 La. 1026
PartiesMILES PLANTING & MFG. CO. v. WARE et al
CourtLouisiana Supreme Court
SYLLABUS

(Syllabus by the Court.)

After an allegation by plaintiff in his petition acquiesced in by defendant of the existence of a material fact and a trial and judgment predicated thereon, the existence vel non of such fact cannot be regarded as an issue in the case, or as open to discussion on the appeal. A litigant is not expected to prove or disprove that which his opponent alleges and he is willing to admit.

The objection that a document offered in evidence is not what it purports to be should be made at the time of the offer; it comes too late when made in argument on the appeal to this court.

Sheriffs are restricted in the exercise of their functions in civil cases to their respective parishes, and can neither seize property in other parishes nor deliver it if sold by them; by reason whereof the proper course to pursue where, in the matter of the enforcement of a claim secured by a mortgage importing confession of judgment the holder elects to proceed at the domicile of the debtor, rather than in the jurisdiction where the mortgaged property is situated, would seem to be to proceed via ordinaria, and, after obtaining judgment in the court of the domicile, to send it, for execution, to the court having jurisdiction of the property as provided by Code Prac. art. 732.

The law contemplates that property which is to be sold under judicial process shall be advertised in the jurisdiction where situated and where the sale is to be made, since, in most cases, it would be a vain thing to advertise property in one part of the state in order to sell it in another.

As against a defendant in a petitory action, alleged to be in possession, and shown to be in possession under a claim of title and not as a trespasser, the plaintiff must recover, if at all, upon the strength of his own title, rather than upon the weakness of that set up by defendant.

Borron & Wilbert, of Plaquemine, and Dart, Kernan & Dart, of New Orleans, for appellant.

Pugh & Lemann, of Donaldsonville, for appellees.

Statement of the Case.

OPINION

MONROE, C. J.

This is a petitory action for the recovery of a tract of swamp land, indicated by the shaded area on the subjoined sketch and described as situated in the parish of Iberville and consisting of fractional section 96, T. 10 S., R. 13 E., and so much of section 1, T. 11 S., R. 13 E., as will make up 300 acres between parallel lines. The original defendant, James A. Ware, having died, his widow and son (the latter being his sole heir) were put in possession of his estate and made defendants in his stead, and they having conveyed the land to the Belle Grove Planting & Manufacturing Company (organized by them), that corporation was also made defendant.

The land in question was included among several tracts of 'vacant land,' which, with a certain sugar plantation, now known as 'the New Hope Plantation,' belonged to Trasemond Landry, and at some time prior to January, 1868, had been mortgaged by him to secure a subscription of over $ 100,000 to the capital stock of the Citizens' Bank, which mortgage was, in turn, pledged to secure the payment of certain bonds issued by the authority of the state of Louisiana, and the whole of which property was adjudicated to the bank in a proceeding in foreclosure on the date above mentioned, without, however, affecting the status of the stock mortgage which, by virtue of special legislation, was to remain intact until the payment of the bonds. As plaintiff and defendants alike trace title to the adjudication so made, it is unnecessary to go into further details concerning it for the purposes of this case.

On March 6, 1868, the bank sold the property subject to the stock mortgage to J. B. Wilkinson for $ 52,000, of which he paid $ 3,000 in cash, and for the balance gave notes secured by special mortgage (taking rank next after the stock mortgage); on January 27, 1869, Wilkinson sold an undivided half interest in the property to Allen Thomas, who assumed, to the extent of one-half, his vendor's obligations to the bank; on March 2, 1870, Wilkinson and Thomas executed an instrument under private signature, or are said to have done so by virtue of which the defendants herein set up title to the particular land in dispute; on January 24, 1872, Wilkinson sold to Euclid Borland, Jr., an undivided half interest in the entire property, as acquired by him from the bank, and Borland assumed, to that extent, his obligations to the bank; on February 8, 1873, Borland sold the interest so acquired by him to his co-owner, Thomas, who, in turn, assumed those obligations; and on September 6, 1877, Thomas, by notarial act, reassumed the stock mortgage, acknowledged himself indebted to the bank in the sum of $ 59,036.88, and gave notes therefor, payable on March 1, 1878, secured by special mortgage, which notes not having been paid at maturity, the bank, on January 31, 1881, caused executory process to issue from the district court for the parish of Ascension by virtue whereof the sheriff of that parish, after advertisement therein, on March 2, 1881, adjudicated the entire property to the bank for an amount falling short by over $ 100,000 of the mortgage held by it.

On May 5th following the bank filed an application for a monition in the district court for the parish of Ascension, and obtained a judgment thereon; but James A. Ware and others thereafter filed oppositions, alleging, inter alia, that the judgment had been rendered in chambers and out of term time, and was therefore void and of no effect, and Ware further alleged that he had acquired title to the land here in dispute through mesne conveyances from Wilkinson and Thomas by virtue of the instrument heretofore mentioned; that the bank had acquired no title thereto for the reasons that it was situated in Iberville parish, and was not contiguous to that which had been seized in the parish of Ascension; that the mortgage under which the seizure purported to have been made had not then been recorded in Iberville; that the sale was not advertised in that parish; and that the sheriff of the parish of Ascension was without authority to make it. After hearing, the oppositions were dismissed and the title set up by the bank was confirmed; but an appeal was allowed to this court, by which the judgment was reversed and the case remanded in the following terms, to wit:

'It is conceded that, although the mortgaged property is described and represented in the mortgage as being situated in the parish of Ascension, a portion of it is really in the parish of Iberville, and therefore proper publication was necessary to be made in both of those parishes to authorize the sale. Proper legal evidence was not introduced showing such publication in Iberville. The judgment in chambers is null and of no effect. In re Gay, 20 La.Ann. 176; Moore v. Knapp, 7 La.Ann. 22. * * * The opponents, to our minds, have such an interest as gave them a cause of action which is set forth in their oppositions, which were, to our minds, improperly dismissed. * * * Spencer v. Goodman & Bradfield, 33 La.Ann. 906. In this proceeding we are not called upon to pass upon the validity of the mortgage and other claims of the bank, but only to decide as to the regularity of the proceedings and the correctness of the judgment on the evidence in the record.

'It is therefore ordered * * * that the judgment * * * be annulled, * * * without prejudice to the right of the Citizens' Bank to proceed according to law, and, with the introduction of proper and legal evidence, to prosecute their suit for monition, this case is remanded to the district court for the parish of Ascension, to be proceeded with according to law, appellees to pay the costs,' etc. Citizens' Bank v. Allen Thomas, No. 8456 of the docket of this court (partially reported in 34 La.Ann. 1254).

The opinion of this court was handed down on April 10, 1882, and no further steps appear to have been taken in the monition proceedings since that time.

In the meanwhile (i. e., while the matter was pending on appeal in this court) the bank, with the consent of the holders of the bonds which the stock mortgage was intended to secure, had sold the plantation and vacant lands, including the land in dispute, free of incumbrance, for $ 30,000 in cash, to Oliver Beirne, by whom it was devised to his grandchildren, members of the Miles family, who conveyed it to 'the Miles Planting & Manufacturing Company, Limited,' by which it was conveyed to 'the Miles Planting & Manufacturing Company,' the plaintiff now before the court.

The instruments of conveyance upon which defendants rely, as, in part, showing their title, read as follows:

'Parish of Iberville, State of Louisiana, March 2, 1870. We, the undersigned, do agree to convey to Henry Ware, his heirs or assigns, such title as we have acquired, or may acquire, from the Citizens' Bank to fraction No. 96 and an additional amount or number of acres of the north end of section 1 as will make 300 acres of land, including section 96, commencing at the northeast corner of fraction 96 on the back line of Andrews tract, and running south with the east boundary of fraction 96 and section 1 a sufficient distance to include the number of acres specified; thence west to the west boundary of said section 1, so as to include the 300 acres between parallel lines, including the land most contiguous to the Andrews tract. The consideration for which said land is sold is $ 1,500, the receipt of which is hereby acknowledged; said titles to be made as soon as the land is surveyed, or by the 1st day of June next. [Signed] ...

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