Aronson v. Taylor , 1928 La. App. LEXIS 58 ( 1928 )

WESTERFIELD, J.

Morritz Aronson, by executory process, caused a certain piece of real estate owned by Allen B. Taylor, his mortgage debtor, to be sold by the sheriff to J. A. Morales for $3250.00, a sum less by $250.00 than the principal of Aronson’s claim. The sheriff retained his costs and obtained tbe receipt of Aronson’s counsel for tbe remainder of tbe price of adjudication. It appears that tbe purchaser paid in cash tbe amount due tbe sheriff and gave tbe mortgage creditor bis note secured by mortgage on tbe property for tbe balance.

At this stage of tbe proceedings Jas. Demourelle & Sons, Inc., intervened by rule and asked to be recognized as the jiolder of a building lien superior in rank to tbe mortgage of tbe seizing creditor and that tbe sheriff be ordered to pay over to it tbe sum of $625.28 out of tbe proceeds of sale “to the exclusion of all other creditors of said property”. Among other defenses to this rule the seizing creditor pleaded tbe exception of no cause of action.

This defense tbe trial court believed ineffectual, but we are not in accord with that view.

Tbe sheriff did not and should not collect tbe amount of any prior liens upon tbe property.. As a matter of fact be received less than was due tbe mortgage creditor.

In Milliken & Farwell vs. Taft Mercantile Co., No. 9998 of our docket (not yet reported) we discussed the appropriate provisions of the’ Code -of Practice, Arts. 679, 683 and 706, and quoted from tbe leading case of Bocus vs. Hernandez, 31 La. Ann. 85, tbe following:

“Tbe sheriff is not authorized to receive from tbe purchaser of property at a judicial sale tbe amount of tbe mortgage or privilege debts which rank the claim of tbe seizing creditor, and hence tbe sureties of tbe sheriff cannot be held for tbe amount of such debts received and not accounted for by tbe sheriff.”

It follows that, if tbe sheriff not only was under no obligation to collect tbe amount of plaintiff’s claim, but, on tbe contrary, was not authorized to do so, and if, as a matter of fact, be did not collect any amount in excess of, but, on tbe contrary, less than tbe sum due tbe seizing creditor, we can not see where plaintiff in rule has any standing to complain of bis action or to párticipate in tbe proceeds which were insufficient to pay tbe seizing creditors. Whatever rights intervenor may have as against tbe purchaser of tbe property are not pertinent to this case and we express no opinion thereon.

For tbe reasons assigned tbe rule herein taken by James Demoruelle & Sons must be dismissed at its cost.