Succession of Allan v. Couret

24 La. Ann. 24

• Court: Supreme Court of Louisiana
• Decided: January 15, 1872
• Docket: No. 2310
• Status: Published

Opinion

Ludeling, C. J.

On the twenty-first of October, 1856, an order of seizure and sale was obtained against the property of George Allan. On the next day following the notice required by article 735 of the Code of Practice was served upon George Allan personally; but for some reason not explained in the record, no seizure was made of the property until January, 1858. A notice of seigure was served on the wife of said Allan on the eleventh February, 1858, the said Allan being side in the ¡house at the time. The property was publicly adjudicated on the twentieth March, 1858, after due advertisements, to James M. Forgay and Henry Bier, who subsequently sold it to J. B. Couret and J. C. Stevenson, the defendants in this cause.

On the twenty-fourth of 'January, 1868, this suit was instituted to set aside the sheriff’s sale, on the ground that there was no legal service of the notice of seizure, because the defendant, George Allan, was, at the time of the service of the notice of seizure, an interdicted person, and as such incompetent to receive such notice.

Conceding, for the sake of argument, that this notice of seizure is required by law, the improper service or lack of service of the notice of seizure was an informality, which has been cured by the lapse of five years under the act of tenth March, 1834, section 4, page 123. The plea of prescription of five years must be sustained.

It is therefore ordered that the judgment of the district court be affirmed, with costs of appeal.

Rehearing refused.