Witkowski v. Alley ( 1885 )

Gunby, J.

Where plaintiff files an amended petition, setting up matters of substance which affect the issue, said amendment must be served and regularly put at issue; otherwise the trial will be ‘illegal and the case must be remanded. 21 An. 461.

2. A sale of real estate by the sheriff carries with it a sale of the rents and revenues of the property accruing subsequently to the sale, without any mention of the rents in the sale; and if the lessee has paid the rents to the previous owner before the sheriff’s sale, it will not protect him from paying to the purchaser. 14 An. 47.

3. Rents accruing between the seizure and the sale will not pass to the purchaser of the land unless the rents are mentioned in the notice offseizure, the advertisement and sheriff’s deed.

4. There is no inconsistency in plaintiff’s claiming to own the rents under two titles which do not conflict. A party may hold property by two titles, or he may fortify one title by another in the alternative.

5. Where the lessee claims that he paid the lessor the amount of a lease contract, not negotiable, after the same was transferred to plaintiff, he must prove affirmatively that he was not, at the time of payment, cognizant of the transfer.