Arceneaux v. Cormier , 175 La. 941 ( 1932 )

A further consideration of this case has confirmed the correctness of the view expressed in our original opinion that the title of the defendants A.J. and J.C. Cormier to the property in dispute is protected against plaintiffs' attack by the prescription of five years provided by article 3543 of the Civil Code. This prescription applies to the informality arising from the sale of the property for its full value although for less than two-thirds of its appraised value, as well as to all informalities existing prior to the order of sale, which was issued by a competent court.

The record discloses that some fifty or sixty persons attended the succession sale, which was conducted by H.E. Estorge, a reputable auctioneer, now dead. There was competitive bidding on both tracts of land, and nothing at the sale occurred to differentiate it from the usual sale of succession property.

The record also discloses that the appraisements were excessive and that the property brought all that it could reasonably be expected to bring at the time it was sold.

In these circumstances, we think that the case falls within the rule stated in Thibodeaux v. Thibodeaux, 112 La. 906, 36 So. 800, 802, approved in Lacroix v. Crane, 133 La. 227, 62 So. 657, and Huckaby v. Huckaby, 134 La. 107, 63 So. 755, namely: "The law requires that the property of a succession shall be inventoried and appraised (Civ. Code, arts. 1101, 1106), and it has been held by this court that it cannot legally be sold at the first offering, for cash, for less than two-thirds of the appraisement. Succession of Hood and Wife, 33 La. Ann. 472. If however, it be sold for less, but neither fraud nor injury are shown, and it does not appear that the price obtained was less than could reasonably have been expected at a forced sale, the failure to obtain the required amount may be regarded as an informality. Upon the other hand, if it be sold, not only for less than the required amount, but for less than its value at the time and under the circumstances, the failure to obtain the required amount is not an informality, but a matter of substance."

It is true that in the Thibodeaux, Lacroix, and Huckaby Cases the prescription of five years was held to be inapplicable, but that was only because the facts in those cases did not bring them within the operation of the rule, and not because the rule itself is not a salutary one. For our own part, we think the rule is fundamentally sound and should be adhered to and applied in proper cases.

The prescription provided by article 3543 of the Civil Code has been held to apply to informalities of advertisements in judicial sales. Samuels v. Parsons, 146 La. 262, 83 So. 548; Nagel v. Clement, 113 La. 192, 36 So. 935. Even a total want of advertisement has been held to be cured, Louaillier v. Castille, 14 La. Ann. 777. And an adjudication at a sheriff's sale for less than the inventory appraisement is covered by the prescription of five years. Munholland v. Scott, 33 La. Ann. 1043.

In Fraser v. Zylicz, 29 La. Ann. 534, where, on application of their tutor authorized by a family meeting, minors' property was sold in order to maintain and educate the minors, this court held that the purchaser was protected by the prescription of five years under article 3543 in an action to annul the sale on the ground, among others, that the adjudication was for less than the appraised value of the property. The court said: "It is manifest that the adjudication of a minor's property for less than its appraisement is not absolutely null, but only annullable. The adjudication of it by the sheriff for less than its appraisement is an informality and illegality of the sale, like that made without advertisement, or with an insufficient advertisement, or without appraisement, and the like."

Appellants refer to article 990 of the Code of Practice as requiring that the full appraisement must be reached on the first offering of succession property. But that article applies only when the sale is demanded by creditors, and not to a sale made upon application of an administrator to pay debts, in which case, whether there are minor heirs or not, the adjudication can be legally made at two-thirds of the appraisement. Succession of Hood, 33 La. Ann. 466.

Appellants also cite the following cases, viz.: Morton v. Reynolds, 4 Rob. 28; Succession of Porter, 5 Rob. 96; Collier v. Stanbrough, 6 How. 14, 12 L. Ed. 324, affirming Collier v. Stanbrough, 6 Rob. 230; Succession of Fritz, 12 La. Ann. 368; Herrmann Vignes v. Fontelieu, 29 La. Ann. 502; Succession of Tabary, 31 La. Ann. 409; Succession of Hood, 33 La. Ann. 472; Brewer v. Brewer, 145 La. 835, 83 So. 30; Killeen v. Boland Gschwind Co., 157 La. 566, 102 So. 672; Pratt v. Dalgarn,166 La. 35, 116 So. 585; Fisette v. Taylor, 167 La. 1103, 120 So. 872.

None of these cases, however, involved the prescription of five years provided by article 3543 of the Civil Code, except Morton v. Reynolds, Pratt v. Dalgarn, and Fisette v. Taylor.

In the Morton Case, the court refused to apply the prescription where the property of a minor was sold to her tutrix for less than the appraisement and that no undertutor was present at the family meeting which advised the sale. In the Pratt Case no argument was made in support of the prescription of five years. There the court held that the prescription was not sufficient to establish the title of a purchaser under tax sales where the sales were absolutely null because of the dual assessment of the property and the prior payment of taxes thereon. These cases contain nothing opposed to the application of the prescription of five years in the present case.

Fisette v. Taylor is unfavorable rather than favorable to the position assumed by appellants. There the prescription of five years was applied to a public sale by a tutor of his ward's property where the property was sold for less than its appraised value. The court said: "The most serious of the three complaints mentioned is that the sale was made for a price less than the appraised value of the property, and it is well settled that even that complaint is barred by the prescription of 5 years, under article 3543 of the Civil Code, in those cases where the complaint would be good if made within 5 years; but the complaint is never well founded when the sale (for two-thirds of the appraised value of the property) was made on the application of an administrator for the purpose of paying the debts of the succession, even though there were minor heirs." Following which is a long list of authorities.

For the reasons assigned the judgment appealed from is affirmed.

O'NIELL, C.J., and ODOM, J., dissent.