Lushest, J.
The only point raised in the present injunction suit, is, whether the clause inserted in the act of mortgage, dispensing with the appraisement required by Art. 673 and 745 of the Code of Practice, in a case of a judgment sale, is valid in law.
The plaintiff in injunctidn contends that all laws regulating the enforcement of legal obligations through the agency of the judicial department of the government, are public laws; and that an action brought in a court of justice is the interposition of the public power of the State, through the judiciary, for the vindication of a private right; that when a Court renders a judgment, and directs the execution of that judgment, it exercises the sovereign power of the State, and all laws applicable thereto are necessarily public, and not merely private, governing the rights and obligations arising from the relations between man and man; and reference is made, in support of this doctrine, to the institute “Publicum jus est, quod statum rei Romanse spectat; privatum, quod ad singulorum utilitatem pertinet.” And, as a corollary to this, it is urged that the law requiring the property of a judgment debtor to be appraised before it [75]*75can be sold by the Sheriff in execution of a judgment, is a public law; and that an agreement to waive or dispense with the appraisement, is absolutely void.
On the other hand it is contended, that the necessity for appraisement in judicial sales is established exclusively for the benefit of the defendant, and that he may, therefore, validly renounce it, under the second paragraph of Art. 11 of our Civil Code.
On the correctness of one or the other of these conflicting theories, rests the whole question in controversy.
From the general tenor of our own jurisprudence, we should hardly have deemed this question an open one, for it has been uniformly held, that the legal formalities attending final process are established by law in favor of debtors in execution; which they can renounce, without in any manner running counter to the proviso in the second paragraph of Art. 11 C. C. The cases to which our attention has been called, view the question in all its phases, and seem to consider the progressive steps in the execution of judgment as mere formalities; less a matter of public policy than of private concern, and hence they deem the renunciation or waiver of those rights as permissible under § 2 of Art. 11 of the Civil Code.
Our attention is directed to some of these adjudged cases.
In Mullen v. Martin, 12 A. 271, a judgment debtor whose property was seized on the 30th of May, 1848, waived notice, appraisement and advertisement, and the property was sold by the Sheriff on the 3d June, 1848. This sale being attacked by a creditor holding a judicial mortgage, it was held by the Court: “a judgment debtor is certainly at liberty to waive the formalities of law so far as they affect his personal interests.”
In Leblanc v. Dubroca, 6 A. 362, and in McDonald v. Garland, 7 A. 143, a waiver of three days’ notice of seizure, previous to advertisement, was held to be the waiver of a right personal to the defendant, and regular.
In Desplattes v. St. Martin, decided in May last, in this Court, it is said: “ It appears from the testimony, that there was no appraisement of the property; but it also appears that the defendant was present, and when called upon by the Sheriff to appoint an appraiser, declined to do so, on the ground that the landed property was mortgaged for more than two-thirds of its value, and an appraisement was unnecessary. He thus waived the appraisement and ratified the sale, and cannot now be heard to complain.
These and some other cases not cited, referred to waivers or renunciations made by debtors, subsequent to the seizure of their property, and not to stipulations in the original contracts. In one case, however, The Union Bank v. Bradford, 2 A. 416, an identical clause with that which is found in the act of mortgage on which the order of seizure and sale was issued in this case, was inserted in the mortgage given to the bank.
The facts of the Bradford case were these :
[76]*76The Bank held a mortgage against one Mapes, containing a clause •authorizing a sale in execution for cash without appraisement; but the bank did not choose to avail itself of this clause, and, in the petition which it presented for executory process, the prayer was that the property mortgaged, be seized and sold as Che law directs. The Judge made his order on the petition in the same form of words, but the Clerk of the Court having issued the writ, commanding the Sheriff to sell for cash, without •appraisement, the property was collusively adjudicated to Bradford, for thirteen dollars. The mortgagee complained of this, not the mortgagor, and the Supreme Court held the following language in its decision :
“It is manifest that this sale was not made in conformity to the order •of the Judge. The stipulation in the act of mortgage was one made for •the benefit of the plaintiffs, which it was discretionary with the bank to have enforced or renounce. It was virtually waived by claiming a seizure •and sale according- to law. ”
It is true that no question in that case, as to the validity of the stipulation in the act of mortgage, respecting the waiver of appraisement, was directly before the Court; but the opinion of the Court is, nevertheless, unequivocally expressed, that the renunciation by the debtor was a valid one.
Whenever this Court has set aside sales for want of appraisement, there has either been no consent to waive appraisement, or that consent has been given with a fraudulent intention, and has had an injurious effect on the rights of others.
Such was the case in Selligsberg’s Succession, 1 A. 340. The judgment debtor, Fleming, was in failing circumstances, and the waiver of appraisement was collusively made to defraud creditors.
The law of France, in its practical application, differs but little from the law of Louisiana, and both rest on the maxim of the Boman law, which lays it down as a rule that every one is at liberty to renounce what the law has established in his favor and interests but himself.
“Est regula juris antiqui omnes licentiam habere his quae pro se indicta sunt renunciare. ” L. 29, C. de Bactis.
But individuals cannot, by their conventions, derogate from the force of laws made for the preservation of public order or good morals. I. C. dePactic 2; 3L. 45, 1$ de B. T. L. 38, de Pactis, 2, 14.
Marcadé, commenting on the last rule cited, observes : “Cet article en nous disant qu’on ne peut par convention déroger aux lois dont il parle, nous indigne assez qu’on pourra, par a moyen, déroger aux autres.” Yol. 1, p. 671. And the jurisconsults who compiled our Code, which they adopted verbatim, the Article 6 of the French Code, in the Article 11 of •our own Code, have added to that Article a second paragraph, which is a legislative recognition of Marcadé’s doctrine, and has removed much of the uncertainty of the French Article. (See also the doctrine of Toullier, hereinafter referred to.)
The second paragraph of Article 11 of our Code, is as follows:
[77]
Free access — add to your briefcase to read the full text and ask questions with AI
Lushest, J.
The only point raised in the present injunction suit, is, whether the clause inserted in the act of mortgage, dispensing with the appraisement required by Art. 673 and 745 of the Code of Practice, in a case of a judgment sale, is valid in law.
The plaintiff in injunctidn contends that all laws regulating the enforcement of legal obligations through the agency of the judicial department of the government, are public laws; and that an action brought in a court of justice is the interposition of the public power of the State, through the judiciary, for the vindication of a private right; that when a Court renders a judgment, and directs the execution of that judgment, it exercises the sovereign power of the State, and all laws applicable thereto are necessarily public, and not merely private, governing the rights and obligations arising from the relations between man and man; and reference is made, in support of this doctrine, to the institute “Publicum jus est, quod statum rei Romanse spectat; privatum, quod ad singulorum utilitatem pertinet.” And, as a corollary to this, it is urged that the law requiring the property of a judgment debtor to be appraised before it [75]*75can be sold by the Sheriff in execution of a judgment, is a public law; and that an agreement to waive or dispense with the appraisement, is absolutely void.
On the other hand it is contended, that the necessity for appraisement in judicial sales is established exclusively for the benefit of the defendant, and that he may, therefore, validly renounce it, under the second paragraph of Art. 11 of our Civil Code.
On the correctness of one or the other of these conflicting theories, rests the whole question in controversy.
From the general tenor of our own jurisprudence, we should hardly have deemed this question an open one, for it has been uniformly held, that the legal formalities attending final process are established by law in favor of debtors in execution; which they can renounce, without in any manner running counter to the proviso in the second paragraph of Art. 11 C. C. The cases to which our attention has been called, view the question in all its phases, and seem to consider the progressive steps in the execution of judgment as mere formalities; less a matter of public policy than of private concern, and hence they deem the renunciation or waiver of those rights as permissible under § 2 of Art. 11 of the Civil Code.
Our attention is directed to some of these adjudged cases.
In Mullen v. Martin, 12 A. 271, a judgment debtor whose property was seized on the 30th of May, 1848, waived notice, appraisement and advertisement, and the property was sold by the Sheriff on the 3d June, 1848. This sale being attacked by a creditor holding a judicial mortgage, it was held by the Court: “a judgment debtor is certainly at liberty to waive the formalities of law so far as they affect his personal interests.”
In Leblanc v. Dubroca, 6 A. 362, and in McDonald v. Garland, 7 A. 143, a waiver of three days’ notice of seizure, previous to advertisement, was held to be the waiver of a right personal to the defendant, and regular.
In Desplattes v. St. Martin, decided in May last, in this Court, it is said: “ It appears from the testimony, that there was no appraisement of the property; but it also appears that the defendant was present, and when called upon by the Sheriff to appoint an appraiser, declined to do so, on the ground that the landed property was mortgaged for more than two-thirds of its value, and an appraisement was unnecessary. He thus waived the appraisement and ratified the sale, and cannot now be heard to complain.
These and some other cases not cited, referred to waivers or renunciations made by debtors, subsequent to the seizure of their property, and not to stipulations in the original contracts. In one case, however, The Union Bank v. Bradford, 2 A. 416, an identical clause with that which is found in the act of mortgage on which the order of seizure and sale was issued in this case, was inserted in the mortgage given to the bank.
The facts of the Bradford case were these :
[76]*76The Bank held a mortgage against one Mapes, containing a clause •authorizing a sale in execution for cash without appraisement; but the bank did not choose to avail itself of this clause, and, in the petition which it presented for executory process, the prayer was that the property mortgaged, be seized and sold as Che law directs. The Judge made his order on the petition in the same form of words, but the Clerk of the Court having issued the writ, commanding the Sheriff to sell for cash, without •appraisement, the property was collusively adjudicated to Bradford, for thirteen dollars. The mortgagee complained of this, not the mortgagor, and the Supreme Court held the following language in its decision :
“It is manifest that this sale was not made in conformity to the order •of the Judge. The stipulation in the act of mortgage was one made for •the benefit of the plaintiffs, which it was discretionary with the bank to have enforced or renounce. It was virtually waived by claiming a seizure •and sale according- to law. ”
It is true that no question in that case, as to the validity of the stipulation in the act of mortgage, respecting the waiver of appraisement, was directly before the Court; but the opinion of the Court is, nevertheless, unequivocally expressed, that the renunciation by the debtor was a valid one.
Whenever this Court has set aside sales for want of appraisement, there has either been no consent to waive appraisement, or that consent has been given with a fraudulent intention, and has had an injurious effect on the rights of others.
Such was the case in Selligsberg’s Succession, 1 A. 340. The judgment debtor, Fleming, was in failing circumstances, and the waiver of appraisement was collusively made to defraud creditors.
The law of France, in its practical application, differs but little from the law of Louisiana, and both rest on the maxim of the Boman law, which lays it down as a rule that every one is at liberty to renounce what the law has established in his favor and interests but himself.
“Est regula juris antiqui omnes licentiam habere his quae pro se indicta sunt renunciare. ” L. 29, C. de Bactis.
But individuals cannot, by their conventions, derogate from the force of laws made for the preservation of public order or good morals. I. C. dePactic 2; 3L. 45, 1$ de B. T. L. 38, de Pactis, 2, 14.
Marcadé, commenting on the last rule cited, observes : “Cet article en nous disant qu’on ne peut par convention déroger aux lois dont il parle, nous indigne assez qu’on pourra, par a moyen, déroger aux autres.” Yol. 1, p. 671. And the jurisconsults who compiled our Code, which they adopted verbatim, the Article 6 of the French Code, in the Article 11 of •our own Code, have added to that Article a second paragraph, which is a legislative recognition of Marcadé’s doctrine, and has removed much of the uncertainty of the French Article. (See also the doctrine of Toullier, hereinafter referred to.)
The second paragraph of Article 11 of our Code, is as follows:
[77]*77“But, in all cases in which it is not expressly or impliedly prohibited,, individuals can renounce what the law has established in their favor,, when the renunciation does not affect the right of others, and is not contrary to the public good.”
It is, then, evident, that the law of Louisiana allows individuals to-derogate, by their conventions, from any advantages which the general law may have allowed them, under three modifications: 1. That the law granting the advantage be not one expressly or impliedly prohibitory of such renunciation. 2. That the renunciation do not affect the right of third persons; and, 3. That the renunciation be not contrary to the public good.
Art. 6 of the French Code, less comprehensive than our Art. 11, has-also received its interpretation. Merlin, Bépertoire de Jurisprudence, verbo Benonciation, No. 1, says : “En général, chacun peut renoneer aux facultés, aux droits, aux privileges qui lui sont déférés pour son avantage personnel; c’est la conséquenee de la máxime consaerée par la loi 68 D. de regulis juris: Invito beneficium non datur. C’est sur le méme principe que sont fondées les lois qui décident et les arréts qui ont jugé queles nullités d’actes et de procédures sont eouvertes par l’acquiescement des parties intéressées á les faire valoir.”
And Zacharúe, vol. 1, p 6á, and Duranton, vol. 1, p 25, No. 110, lay. down as a general rule to interpret the maxim enunciated in L. 29, de Bactis (Art. 6, French Code,) “Chacun est libre de renoneer, et par. conséquent, de déroger aux dispositions légales qui ne sont introduces qu’en sa faveur, et qui n’intéressent que lui seul.”
And the right of waiving or dispensing with the law, is examined by Toullier, vol. l,No. 101 to 111. He shys that, as a general rule, “spindividual is always at liberty to waive the benefits of laws made for his advantage,” and the cases where he cannot do so, are exceptions to the general rule, and are confined within strict limits. Those exceptions he classes under three heads :
.1. Where the law itself has prohibited any deviation from its, dispositions.
2. Wteare it may be inferred from the dispositions or the motives of the law that ft is absolutely prohibitory; and,
3. Where the law has for its foundation, some public or political cause,, or the interest of a third person. Yol. 1, No. 108.
Aided by the light which the French jurists have afforded us in solviffg. this mooted question, we are now to determine whether the clause referred to in the plaintiff’s mortgage is a nullity.
We are not prepared to subscribe unrestrictively to the plaintiff’s theory,, that formalities prescribed by law, in executing final process, are so-essentially obligatory on the parties to a suit, that they may not be dispensed with. There is certainly in the Code no express prohibition against a party’s waiving an appraisement of his property, either before or after the seizure of it. Nor is there anything in the context of the-[78]*78law, or in. any law on the subject matter, from which such a prohibition Is to be implied.
Dunod expresses very clearly the reason why such a renunciation (if a nullity at all) falls under that class denominated relative. He says : “Lanullité relative est eell'e qui n’interesse que certaines personnes-”
“ Quoique la fin de la loi soit toujours l’intérét public et de la soeiété, la vue de cet intérét est souvent éloignée, et la loi considere alors en premier lieu, dans sa prohibition et dans les nullités qu’elle prononce, l’intérét des particuliers: primaria, special utiUtatem privatam, et secundaria, publieam. Ce sont les particuliers qui profitent de sa disposition, et sa prohibition, en ce cas, produit une nullité qu’on appelle respective, parceque cette nullité n’est censée intéresser que celui en faveur de qui elle est prononcée; e’est pourquoi il peut seul s’en prévaloir et la proposer; et si d’autres le faisaient, on leur opposeraient avec raison qu’ils se fondent sur le droit d’autrui.”
And Merlin, Bépertoire de Jurisprudence, verbo Nullité, g 3, remarks: “ A l’égard des nullités respectives, il est constant qu’elles sont eouvertes par le consentement que donnent a l’exécution des actes qui les renferment, les parties intéressées k fame valoír ces nullités et a détruire ces actes. De la cette máxime si connue, que la nullité d’un ajournement judiciaire est effacée par la comparution de la partie assignée.”
But, if such a stipulation were really an absolute nullity, could that nullity be urged by one who has sanctioned it by his consent ?
On this point, no definite rule can be laid down.
The great object, in such eases, is to ascertain on which side the public interest inclines, and thlt determined by the circumstances presented in a particular case, it should form the basis of judicial action in regard to it. When a party has recognized the validity of an act, the nullity of that act should not be too readily declared; but on the other hand, acts palpably null, should not be too indulgently tolerated. Between criminal and civil laws, there is a marked difference; the former are strictly public laws, and must be so deemed by the cormts of justice which administer them, and by individuals who come under their control.
But civil laws, which involve mere private rights, may be often lawfully relaxed and waived by covenants in Order that the varied transactions, which in the course of human events, are constantly occurring, and with which no code of laws can possibly keep pace, may be facilitated and the more readily consummated.
This we apprehend to be the general rule, as relates to the renunciation of private rights. The exceptional cases are those which trench on public order ; and, within those exceptional cases, is not embraced, as we conceive, the stipulation in the mortgage granted by the plaintiff in injunction.
There are two great principles, which the law in its wisdom, recognizes:
1. The right of competent parties to contract freely.
2. The free, lawful disposal by the owner of his property.
[79]*79This absolute dominion of the owner over his property, is well expressed by the terms of the Roman law. “Tua quisqua rei moderator et arbiter.” He may use or abuse it as he lists. “Jus utendi et abutendi.”
The owner of property may lawfully contract in relation to it, and he is constrained by no law, as to the terms and conditions on which he may dispose of, or affect it, except in cases for which the law itself has provided.
This is not controverted, but it is contended that when the law has prescribed the mode for the forced alienation of property under judicial process, that is a public law and cannot be waived in advance.
And might not the same argument be adduced in regard to thq waiver of domicile, so as to vest a particular court of a district, other than that of a defendant, with jurisdiction over some particular case ? This, it might be supposed, was not deemed an illegal stipulation in a contract, previous to the passage of the act of the Legislature of this State, passed in 1861, (p. 137,) amending Art. 162 of the Code of Practice, and which act provides “that it shall not be permitted to elect any other domicile or residence for purpose of being sued,” which certainly, by strong implication, would seem to have given a legislative interpretation to Art. 162, so as to convey the idea that, previous to the passage of the act of 1861, domicile might have been waived by stipulations in contracts to confer jurisdiction on some other Court. See Toullier, vol. 1., p. 95 $ 103. Without attaching too much importance to the maxim, “ expressio unins est ex'clusio alterius,” might it not apply to other rights conferred on suitors, and which are not expressly prohibited, as now is the waiver of domicile ?
Tested by the rule laid down by the eminent jurist Solon, in his Théorie de la nullité, vol. 1., No. 28, the question as to the class of nullities in which such a renunciation would fall, would not be difficult of solution, and we deem the rule a sound one. “ Dans le doute si une nullité est d’ordre public, ou de droit privé, le silence du législateur doit étre interpreté en ce sens, que la nullité n’a été portée que dans un intérét privé; on concjoit, en effet, que si elle était d’ordre public, le législateur l’aurait exprimé, ou du moins, l’aurait donné a connaitre; et quo le juge ne pourrait pas s’y méprendre. Dans le doute, on doit toujours se prononcer pour la validité de l’acte. Et heec quidem interpretatio per quam actus sustenitur dicitur regina interpretationem.
We conclude, then, that the plaintiff’s renunciation of the benefit of appraisement, in her act of mortgage, is legally valid, and that she cannot be permitted to attack it.
It is therefore ordered, adjudged and decreed, that the judgment of the lower Corn’t be affirmed; the costs of the appeal to Lo paid by the appellant.
Hownnn, J., recused.