Lisso v. Williams

71 So. 365, 139 La. 198, 1916 La. LEXIS 1773

• Court: Supreme Court of Louisiana
• Decided: March 6, 1916
• Docket: No. 21620
• Status: Published

Opinion

PBOVOSTY, J.

In a suit against a Mrs. M. E. Williams, Lisso & Bros., Limited, caused a writ of attachment to issue, and the one-third interest undivided of the said Mrs. M. E. Williams in 739 acres of land to be seized. The attachment was maintained, and the property seized was ordered to be sold to satisfy the debt. An ordinary writ of fieri facias then issued, and in execution of this writ the same undivided one-third interest of the said Mrs. Williams was seized and was advertised for sale. On the day of the sale a Mrs. Haynes, who was claiming to be owner of a one-half interest undivided in the 739 acres of land, and a Mr. W. P. Haynes, who was claiming to hold a mortgage upon the said one-third interest undivided of Mrs. Williams, made a compromise with the said seizing creditor, Lisso & Bros., Limited, by which the seizure was released, except as to 65 acres in indivisión, and W. P. Haynes’ mortgage upon this 65 acres in indivisión was canceled, and this 65 acres in indivisión was sold at the sheriff’s sale, and was bought by the plaintiff in execution, Lisso & Bros., Limited, the authors in title of the plaintiffs in the present case. All this was done without obtaining the consent, and, so far as appears, without the knowledge, of the seized debtor, Mrs. Williams.

[1]The contention of the defendants in the present case is that this sheriff’s sale was null, for the reasons: First, that the thing sold and the thing seized were not the samé; second, that the sheriff was without authority to change for purposes of the sale the description under which he had seized the property; and, third, that the description under which the property was sold, namely, 65 acres in indivisión in the land in question, was not sufficient to identify the thing sold.

Certainly a thing that has not been seized cannot be sold; but, where the seizure is of an undivided interest, say, for instance, a half, we do not see why a smaller interest could not be sold, say, a fourth. To illustrate, why, where the seizure is of a half interest undivided in 100 acres of land, equivalent to 50 acres undivided, a sale could not be made of a fourth interest, equivalent to 25 acres, undivided. As well, in our opinion, might it be argued that, where the sheriff has seized two mules, he cannot sell only one, as that he cannot sell a fourth part undivided where he has seized a half part undivided. Indeed, in a case where a plantation had been seized as an entirety, and a third person enjoined the sale for a one-half undivided interest, this court sanctioned the sale of the other half undivided interest. Losee v. De Lacey, 23 La. Ann. 287. See, also, as sanctioning a sale of less than the whole of the property seized, Clay v. O’Brien, 24 La. Ann. 232; Lane v. Succession of March, 33 La. Ann. 554.

[2] In opposition to this cases involving sales made under executory process are cited; but the distinction between the writ of seizure and sale and the fi. fa. is clear: The one writ addresses itself to specified property; its mandate to the sheriff is to seize and sell the property thus specified, and no other; the other writ addresses itself to the debtor’s property .in general; and its mandate to the sheriff is to cause the amount of the debt to be made out of the property of the debtor indiscriminately. See Danneel v. Klein, 47 La. Ann. 928, 17 South. 466.

[3] The learned counsel for defendants say that the expression “65 acres undivided in 739 acres” is not equivalent to, or has not the same meaning as, the expression C5/739 of 739 acres. They also say that the 739 acres in question consist of three tracts widely separated, and that this makes a difference. For showing that these two expressions are equivalent in meaning the learned counsel for plaintiffs cite Gratz v. Land & R. Imp. Co., 82 Fed. 381, 27 C. C. A. 305, 40 L. R. A. 393; Freeman, Coten. § 96; Gibbs v. Swift, 12 Cush. (Mass.) 393; Battel v. Smith, 14 Gray (Mass.) 497; Jewett v. Foster, 14 Gray (Mass.) 495; Small v. Jenkins, 16 Gray (Mass.) 155; Great Falls Co. v. Worcester, 15 N. H. 412; Linnartz v. McCulloch (Tex. Civ. App.) 27 S. W. 279; Adams v. Hopkins (Cal.) 69 Pac. 228-233; Schenk v. Evoy, 24 Cal. 104; Grogan v. Vache, 45 Cal. 610; Jackson v. Livingston, 7 Wend. (N. Y.) 136; Corbin v. Jackson, 14 Wend. (N. Y.) 619, 28 Am. Dec. Sheafe v. Wait, 30 Vt. 735. But it appears to us to be plain, without the need of the citation of any authority, that these two expressions are exact equivalents. The addition of the qualifier “undivided” shows unmistakably that no particular 65 acres is meant, but an interest of 6Vi39. And, this being the proportion of the interest conveyed, the fact that there are several tracts can make no difference, since an interest in this proportion is conveyed in each of the tracts.

[4] If we are correct in this, the defendants’ third ground evidently has no merit, since there is no uncertainty or indefiniteness in a description by which a o s/73 9 interest in one or more wholes is sold.

Judgment affirmed.

O’NIELL, J., dissents.