Insnnv, J.
Bernard Samuels, the purchaser at a judicial sale of property belonging to the succession of Antoine Hebrard, seeks to have the sale to Mm of a certain lot of ground homologated by means of a monition, which is opposed by R. A. Hebrard, one of the heirs of Antoine Hebrard, who, also, opposes the tableau filed in Court by the testamentary executor, so far as it regards the distribution of the price of the lot, paid by the said purchaser into his hands.
The grounds of opposition are :
1. That the order of sale of June 28th, 1865, for cash, was informal and illegal, by reason of the pre-existing order of sale on the terms and conditions agreed upon.
2. That the second order of sale could not be legally issued, changing the terms and conditions without showing that the existing debts required such an amount of cash, and without notice to the parties to the agreement entered into, including the attorney for the absent heirs, requiring them to show cause why the terms should not be changed, and why the whole amount should not be paid in cash.
3. That the defects in the mortuaria proceedings of the late Antoine Hebrard, being one of those covered by the statute of 1884, the • same may be opposed to the confirmation of the monition prayed for in this case.
The purchaser’s main reliance is on the recognition, as applicable to this ease, of the principle, that a purchaser need only look to the jurisdiction of the Court, but the truth of the record concerning matters within its jurisdiction cannot be questioned. He relies on the following authorities :
In Lallanne’s Executor v. Moreau, 13 La. 436, the Court say : ‘We place our decision on the broad ground, that sales direoted or authorized by Courts of probates, are judicial sales to all legal intents and purposes. It was so decided by this Court in Michel’s Heirs, 11 La. 156, and the principle is recognized in that of Pintar v. Deyres, 3 Martin N. S. 22. Art. 114, p. 366, of the old Civil Code, also seems to recognize it, and it is a textual provision of the Louisiana Code, included in Article 1863.” The [494]*494necessity and wisdom of such a rule of property, has long been felt and acknowledged in the most important States of the Union, and none is better settled in the decision of their Courts. They all maintain that a purchaser under a decree of the Orphan’s Court, is bound to look to the jurisdiction, but that the truth of the record concerning the matters within that jurisdiction cannot be disputed. See the case of Thompson v. Tolmie, 2 Peters 166, in which the Supreme Court said, in conclusion: “If purchasers were responsible for the mistakes of the Court, in point of fact, after they had adjudged upon the facts and acted upon them, such sales would be snares for honest men.”
In Ball’s Administrator v. Ball et al., 15 La. p. 182, the Court, after observing that the purchasers would not be affected by irregularities in that case, say : “The holders of this property would successfully appeal to the decisions of the Court in which it has been adjudged,’’ that purchasers at a sale, made under the decree of a Court of competent jurisdiction, are not to enquire into and be responsible for the proceedings which preceded the decree, and are not bound to look behind the decree itself. See the authorities quoted there.
In McCulloch v. Minor, 2 An. pp. 466, 467, the Court said : “ The purchaser in this case was not bound to look beyond the decree. The jurisdiction of the Court was undoubted, and the jurisprudence of this State has long since been settled that a bona fide purchaser, at a judicial sale, is protected by the decree. And this principle has been repeatedly recognized. See 11 La. 149, 156; 10 Sob. 398; 16 La. 440; 3 Rob. 122, and 15 A. 250.
In the case of Thompson v. Tolmie, 2 Peters, 168, before quoted, tho Court added : “ The purchaser is not bound to look further back than the order of the Court. He is not to see whether the Court was mistaken in the facts of debts and okildren;” and the Court went on to say that such was also the jurisprudence in the State of Massachusetts, where it was held that a title under a sale of administration by virtue of a license from the Court of Common Pleas, was good against the heirs of the intestate, although the license was granted upon, a certificate of the Judge of probates, not authorized by the circumstances of the ease. The Court said: “The license was granted by a Court having jurisdiction of the subject. If that jurisdiction was improvidently exercised, or in a manner not warranted by the evidence in the Probate Court, yet it is not to be corrected at the expense of the purchaser, who had a right to rely upon the order of the Court, as an authority emanating from a competent jurisdiction, and the same principle was affirmed in Voorhies v. The Bank of the United States, 10 Peters, p. 445; 1 Wallace United States Supreme Court Reports, p. 634.
This is certainly the general rule, and the counsel for the opponent Bays : “We do not deny the strength of the argument intrinsically, but we deny its sweeping effect in the case of a monition; and it is contended that the Act of 1834 justifies the opponent in resisting the homologation [495]*495of the sale for any defect whatever, ■ either before or after the judgment.”
He says that the eases cited by the purchaser, to screen him from any defects previous to the rendition of the decree or order of sale, date from 1830 and 1831, when there was no statute of monition, and that the principle therein recognized cannot be invoked to dismiss pleas made in conformity with the statute of 1834.
The doctrine contended for by the purchaser is one now of fixed jurisprudence daily and uniformly put into practical operation. 2 An. 468, 14 An. 154. How far it may be applicable in monition suits is not well settled; but, it would seem to be the fixed determination of the Courts, as we gather from our own jurisprudence, and that of other States of the Union, as well as that of the Supreme Court of the United States, to protect the innocent purchaser of property at judicial sales ; and the case must be a strong one against the purchaser, in whatever form the question is presented, to disturb him for defects in the proceedings, previous to the rendition of the decree, under whioh the sale to him is made.
Is there anything in the mortuoria to estop the opponent from contesting one very important fact — that a sale of the lot of ground was of indispensable necessity to pay the debts and charges of the succession ? If there be, and it had a tendency to induce third persons to believe in the existence of this fact, can he who thus vouched for the truth of it be heard to gainsay it ? Most assuredly not. The opponent subscribes, in the most unqualified manner, to the declaration of the executor, “ that for the purpose of paying debts and expenses of this succession, and meeting the heavy taxation upon property, generally and finally liquida, ting the estate, it becomes necessary and indispensable to sell the property as described in the inventory,” in which is included this lot of ground.
This admission of the indispensable necessity for a sale of this property,
Free access — add to your briefcase to read the full text and ask questions with AI
Insnnv, J.
Bernard Samuels, the purchaser at a judicial sale of property belonging to the succession of Antoine Hebrard, seeks to have the sale to Mm of a certain lot of ground homologated by means of a monition, which is opposed by R. A. Hebrard, one of the heirs of Antoine Hebrard, who, also, opposes the tableau filed in Court by the testamentary executor, so far as it regards the distribution of the price of the lot, paid by the said purchaser into his hands.
The grounds of opposition are :
1. That the order of sale of June 28th, 1865, for cash, was informal and illegal, by reason of the pre-existing order of sale on the terms and conditions agreed upon.
2. That the second order of sale could not be legally issued, changing the terms and conditions without showing that the existing debts required such an amount of cash, and without notice to the parties to the agreement entered into, including the attorney for the absent heirs, requiring them to show cause why the terms should not be changed, and why the whole amount should not be paid in cash.
3. That the defects in the mortuaria proceedings of the late Antoine Hebrard, being one of those covered by the statute of 1884, the • same may be opposed to the confirmation of the monition prayed for in this case.
The purchaser’s main reliance is on the recognition, as applicable to this ease, of the principle, that a purchaser need only look to the jurisdiction of the Court, but the truth of the record concerning matters within its jurisdiction cannot be questioned. He relies on the following authorities :
In Lallanne’s Executor v. Moreau, 13 La. 436, the Court say : ‘We place our decision on the broad ground, that sales direoted or authorized by Courts of probates, are judicial sales to all legal intents and purposes. It was so decided by this Court in Michel’s Heirs, 11 La. 156, and the principle is recognized in that of Pintar v. Deyres, 3 Martin N. S. 22. Art. 114, p. 366, of the old Civil Code, also seems to recognize it, and it is a textual provision of the Louisiana Code, included in Article 1863.” The [494]*494necessity and wisdom of such a rule of property, has long been felt and acknowledged in the most important States of the Union, and none is better settled in the decision of their Courts. They all maintain that a purchaser under a decree of the Orphan’s Court, is bound to look to the jurisdiction, but that the truth of the record concerning the matters within that jurisdiction cannot be disputed. See the case of Thompson v. Tolmie, 2 Peters 166, in which the Supreme Court said, in conclusion: “If purchasers were responsible for the mistakes of the Court, in point of fact, after they had adjudged upon the facts and acted upon them, such sales would be snares for honest men.”
In Ball’s Administrator v. Ball et al., 15 La. p. 182, the Court, after observing that the purchasers would not be affected by irregularities in that case, say : “The holders of this property would successfully appeal to the decisions of the Court in which it has been adjudged,’’ that purchasers at a sale, made under the decree of a Court of competent jurisdiction, are not to enquire into and be responsible for the proceedings which preceded the decree, and are not bound to look behind the decree itself. See the authorities quoted there.
In McCulloch v. Minor, 2 An. pp. 466, 467, the Court said : “ The purchaser in this case was not bound to look beyond the decree. The jurisdiction of the Court was undoubted, and the jurisprudence of this State has long since been settled that a bona fide purchaser, at a judicial sale, is protected by the decree. And this principle has been repeatedly recognized. See 11 La. 149, 156; 10 Sob. 398; 16 La. 440; 3 Rob. 122, and 15 A. 250.
In the case of Thompson v. Tolmie, 2 Peters, 168, before quoted, tho Court added : “ The purchaser is not bound to look further back than the order of the Court. He is not to see whether the Court was mistaken in the facts of debts and okildren;” and the Court went on to say that such was also the jurisprudence in the State of Massachusetts, where it was held that a title under a sale of administration by virtue of a license from the Court of Common Pleas, was good against the heirs of the intestate, although the license was granted upon, a certificate of the Judge of probates, not authorized by the circumstances of the ease. The Court said: “The license was granted by a Court having jurisdiction of the subject. If that jurisdiction was improvidently exercised, or in a manner not warranted by the evidence in the Probate Court, yet it is not to be corrected at the expense of the purchaser, who had a right to rely upon the order of the Court, as an authority emanating from a competent jurisdiction, and the same principle was affirmed in Voorhies v. The Bank of the United States, 10 Peters, p. 445; 1 Wallace United States Supreme Court Reports, p. 634.
This is certainly the general rule, and the counsel for the opponent Bays : “We do not deny the strength of the argument intrinsically, but we deny its sweeping effect in the case of a monition; and it is contended that the Act of 1834 justifies the opponent in resisting the homologation [495]*495of the sale for any defect whatever, ■ either before or after the judgment.”
He says that the eases cited by the purchaser, to screen him from any defects previous to the rendition of the decree or order of sale, date from 1830 and 1831, when there was no statute of monition, and that the principle therein recognized cannot be invoked to dismiss pleas made in conformity with the statute of 1834.
The doctrine contended for by the purchaser is one now of fixed jurisprudence daily and uniformly put into practical operation. 2 An. 468, 14 An. 154. How far it may be applicable in monition suits is not well settled; but, it would seem to be the fixed determination of the Courts, as we gather from our own jurisprudence, and that of other States of the Union, as well as that of the Supreme Court of the United States, to protect the innocent purchaser of property at judicial sales ; and the case must be a strong one against the purchaser, in whatever form the question is presented, to disturb him for defects in the proceedings, previous to the rendition of the decree, under whioh the sale to him is made.
Is there anything in the mortuoria to estop the opponent from contesting one very important fact — that a sale of the lot of ground was of indispensable necessity to pay the debts and charges of the succession ? If there be, and it had a tendency to induce third persons to believe in the existence of this fact, can he who thus vouched for the truth of it be heard to gainsay it ? Most assuredly not. The opponent subscribes, in the most unqualified manner, to the declaration of the executor, “ that for the purpose of paying debts and expenses of this succession, and meeting the heavy taxation upon property, generally and finally liquida, ting the estate, it becomes necessary and indispensable to sell the property as described in the inventory,” in which is included this lot of ground.
This admission of the indispensable necessity for a sale of this property, is made by all the heirs, and the attorney of the absent heirs, and if this was an essential prerequisite to the order for a sale, it could not have been more formally observed ; but were there not, in reality, debts still due by the succession ? The first executor received $4,781 05, and distributed among the heirs $4,643 86, having extinguished of the debts (amounting to some $1,795 39) only $137 19, and leaving due thereon $1,658 20, to be paid out of the prooeeds of the lot. ' The terms of sale were changed by the order for a sale of the 28th June, from credit instalments to cash ; and it is contended that the want of notice of this change to the heirs and attorney of absent heirs, rendered null and void the order of sale, and the sale made under it. The testamentary executor is authorized by law to cause to be sold the property of the succession, to pay the debts and legacies (1661 C. C.); and, in proceeding to the sale of such property, it should be done in the same manner as is prescribed for the curators of vacant successions. 1663 C. C. Notice must be given to [496]*496the attorneg for absent heirs (1157 C. C.); and the Judge, after having heard him, shall order the sale of all or such part of the real estate, -which belongs to the succession, as may appear to him necessary, in order to discharge the debts, (See Articles 1155, 1156, 1157, 1661 and 1663 of the Civil Code.)
So far as regards the requisitions of these articles in relation to the notification of the executor’s petition for a sale to the attorney of absent heirs, it has been complied with, and he and the heirs present have admitted, judicially, the necessity for such a sale. This was the sole object of the law in making the attorney for absent heirs a party to an application for a sale, in order to ascertain, contradictorily with him, if such a sale was necessary.
It was so, in effect, declared in Valderas v. Bird, 10 Rob. 898. The Court therein said :
, “ It is now settled that when there is a formal decree, recognizing the necessity of selling the property for the payment of debts, and giving an opportunity to the attorney of absent heirs to show that no such necessity existed, the purchaser is not bound to look beyond the decree.”
The last order of 28th June, 1865, for a sale, was merely supplementary to the first order, and produced no change in it, except as to the terms, substituting for credit installments of six and twelve months, with interest, a cash price — a modification within the competence of the Court, on the application of the executor, advised as it was by previous proceedings, that a sale was necessary, and aware that the delay for the credit installments, originally specified in the first order, had, long previous to the date of the second order, passed by, and taking into consideration that, in the peculiar state of things then existing, that the change was an advantageous one. Orders for- sales in succession matters are not final judgments, and, as such, unalterable ; but may be, and frequently are, modified by the Judge, in the exercise of a sound legal discretion, and for sufficient reasons. See 540 C. P. Elders v. Rogers, 11 An. 606. Thompson v. Mylner, 9 An. 211. Slark v. Burk, 9 An. 345; which are similar in principle.
The ease of the Succession of Bowles, referred to by the appellee, differs materiaEy from this one. The authorities cited below are, we think, more apposite to the case at bar : Articles 1661, 1663, 1156, 1157, 1042, 1051, and 1055 C. C. Succession of McLean, 12 An. 223. Succession of Gurney, 14 An. 622; and Carter v. McManus, 15 An. 677.
No objection on account of irregularity or iEegaEty.in the order of sale was made at or previous to the sale ; and for the reasons hereinbefore given by us, and those upon which the District .Judge dismissed the oppositions of Richard A. Hebrard, the judgment, with an amendment to it, must be affirmed. By the act of the Legislature, entitled “An act for the further assurance of titles to purchasers at judicial sales, ” approved 10th [497]*497March, 1834, section 5th, it is made the duty of the Judge, in case no cause is shown against the prayer of the monition, to homologate and confirm the judicial sale, provided the applicant has, to the satisfaction of the Judge, complied with the requisitions of the law in relation to advertisements, description of property, etc., which he has done.
It is therefore ordered, adjudged and decreed, that the judgment of the District Court, which only dismisses the opposition of R. A. Hebrard to the homologation of the judicial sale of the lot of ground belonging to the succession of Antoine Hebrard and adjudicated to Bernard Samuels, on the 31st July, 1865, be amended, and that the said judicial sale be, and the same is hereby homologated and confirmed ; and that so amended, that the said judgment be affirmed, at the costs of opponent and appellant.