Willis v. Nicholson , 24 La. Ann. 545 ( 1872 )

Howell, J.

This is an action by a judgment debtor to annul a sheriff’s sale upon the grounds—

I. Of want of authority in the 'sheriff to make the sale. First, because the sale was enjoined ; second, because he was instructed by the plaintiff' in execution not to sell; third, because he had no authority to sell less than he had seized. '

II. There was no sufficient description and identification of the land adjudicated.

The defendant J. NichoLon, who was plaintiff, admits the allegations of the petition and joins in the prayer to annul the sale.

The defendant R. L. Gilmer, the purchaser, and his vendee of a part of the land, pleaded the judgment in the case of “ R. L. G-ilmer, application for monition” (reported in 21 An. 589), as res judicata. This and other exceptions not being sustained, and judgment having been rendered on the merits in favor of the plaintiff annulling the sale, Gilmer and his vendee have appealed.

The plea of res judicata necessarily involves the consideration of the “monition law ” and its applicability to this case.

Its object is declared to be to protect purchasers under sheriffs’ and certain other sales from eviction of the property so purchased, and from any responsibility as possessors of the same upon compliance with the prescribed rules; and the judgment on the monition is conclusive evidence that the monition has been regularly made and duly advertised, and the judgment of confirmation “ shall have the force of res judicata and operate as a complete bar against all persons, whether of age or minors, whether present or absent, who may thereafter claim the property sold in consequence of all illegality or informality in the proceeding, whether before or after judgment, and the judgment of homologation shall, in all cases, be recorded and considered as full and conclusive proof that the sale was duly made . according to law, in virtue of a judgment or order legally and regularly pronounced on the interest of parties duly represented. An exception is expressly made, that the law shall not be construed “ so as to render valid any sale made in virtue of a judgment when the party east was not duly cited to make defense,” and the recourse of minors in certain cases is-preserved. R. S., sections 2370, 2380.

Whatever may have been heretofore said, or may now be said in regard to tho effect of a judgment on a monition upon what may be termed radical defects, we think it clear that the judgment on the application of Gilmer for a monition in this instance is a bar to this action. It was clearly the duty of the plaintiff herein, who does not allege a want of citation in the suit against- her, to make herself a-party to that proceeding, and urge all the grounds of opposition which she might or could have. She was manifestly within the category of persons affected by the notices required to be given and concluded by the judgment in said proceedings. Under the language of the law the thirty days notice applies to “ all persons who can set up any right to the property, in consequence of any informality in the order, decree or judgment of the court under which the sale was made, or any irregularity or illegality in the appraisement and advertisement in time and manner of sale, or for any other defect whatsoever.” The defects urged by the plaintiff are the want of authority in the sheriff for specified reasons and the want of a sufficient description and identification of the property. We think there can be no doubt that there are defects of and within the proceedings resulting in the sale, which should have been urged by plaintiff in opposition to the monition. The presumption of law is that the sheriff had in his hands the writ of execution, which was his full, legal authority, to make the sale, and if that authority was revoked or suspended this fact, as well as any defect of description, should have been set up and established in the monition proceedings.

Mrs. Nicholson having been a party to said proceedings is certainly bound by them.

We think the plea of res judicata should have leen sustained, and-plaintiff’s action dismissed.

Ifc is therefore ordered that the judgment appealed from be reversed, and that there he judgment in favor of R. L. Gilmer and R. White, on their plea of res judicata, dismissing plaintiff’s action at her costs, in the lower court. Costs of appeal to he paid by the appellee.