Ex parte Murray

6 Rob. 74

• Court: Supreme Court of Louisiana
• Decided: October 15, 1843
• Status: Published

Opinion

Martin, J.

Edwin Murray filed a petition for a monition to perfect a sale made by the Court of Probates. Hannah B. Sew-all, and Charlotte Eastman, heirs of John O. Sewall, are appellants from a judgment in his favor. They oppose his pretensions on several grounds. It is useless to examine any but the seventh, which is, that the sale took place before the expiration of the usual delays, without the legal advertisements being made, and not according to the terms stated in the order. The opponent having denied that the legal advertisements had been made, the onus probandi devolved on the petitioner, who had the means of proving that the legal advertisements had been made, if they were really so, while it was impossible for the opponents to prove that they were not. Preceding advertisements being of the essence of a forced or judicial sale, the courts cannot recognize any validity in such a sale, when it is alleged, that it took place without the legal advertisements, and the opposite party does not produce evidence of them.

It is, therefore, ordered, that the judgment be annulled, the opposition sustained, and the sale set aside', the petitioner paying the costs in both courts.