Pike v. Evans

ERROR to the Circuit Court of the United States for the District of Louisiana.

This is a petitory action brought to recover a certain plaintation in Louisiana. The plaintiff (now defendant in error) claimed the land under an act of donation from her uncle, Ackley Perkins, passed the 5th of September, 1861. Perkins had purchased the land at sheriff's sale made Aug. 3, 1861, under a vendor's lien, and gave a twelvemonth's bond for the purchase-money. One Williams, and William S. Pike, the defendant below (now plaintiff in error), were his sureties on this bond. The bond not being paid, a writ of fieri facias, under the laws of Louisiana, was issued upon it against the goods and lands both of Perkins and his sureties. The sheriff, under and by virtue of this writ, sold the plantation in question on the 6th of January, 1866; and Pike, to save his own property and to protect himself against his liability as surety, became the purchaser, paid the incumbrance, and went into possession on the day of sale. He had been in possession over five years when this action was brought; and, amongst other things, pleaded prescription of one, three, and five years.

On the trial of the cause, the plaintiff having proved the act of donation from her uncle, Ackley Perkins, on which she relied, and the previous purchase of the property by him at sheriff's sale in August, 1861, the defendant gave in evidence the twelvemonth's bond executed by Perkins and his sureties for the purchase-money at said sale, the fieri facias issued thereon in October, 1865, and the sheriff's deed to him dated Jan. 6, 1866, and introduced evidence tending to show that he, the defendant, had been in possession of the property in question for a period of five years, and that he purchased the property at the sheriff's sale; and thereupon he asked the court to charge, that if the jury found that he had been in possession for a period of five years, and that he purchased the same from any person authorized to sell at public action, then any informality connected with or growing out of the sale was cured by the lapse of five years. The court gave the instruction asked, but added, 'If the sheriff did not seize the property, that is an informality which is not cured by possession for five years.' The counsel for the defendant excepted to this modification.

There was a judgment for the plaintiff below, whereupon the defendant sued out this writ of error.

Mr. Thomas J. Durant for the plaintiff in error.

The court below erred in charging the jury as to the effect of the sheriff's failure to seize the property. Walden v. Canfield, 2 Rob. (La.) 472; Drouet v. Rice, id 377; Leduf v. Bailly, 3 La. Ann. 8; Brien v. Sargent, 13 id. 198; Robert v. Brown, 14 id. 598; Budd v. Stenson, 20 id. 573; Woods v. Lee, 21 id. 505 et seq.; Pasiana v. Powell, id. 584.

Mr. George W. Paschal, contra.

The omission of the sheriff to actually seize the property rendered the sale absolutely null and void. There was, therefore, no error in the charge of the court below. Watson v. Bondurant, 21 Wall. 123; Stockton v. Downey, 6 La. Ann. 581; Birch v. Bates, 22 id. 198.

In Morton v. Reynolds, 4 Rob. (La.) 26, it was held that the prescription of five years related to and cured merely irregularities in the advertisements, time, place, and terms of sale occurring after a legal seizure. But informations could not apply to all manner of nullities. The statute is not curative of such.

MR. JUSTICE BRADLEY, after stating the case, delivered the opinion of the court.