
    No. 11,782.
    C. Amato et als. vs. Ermann & Cahn et als.
    It Is no ground for setting aside a judicial sale that the movables attached to a plantation which were about to he sold in block with it, under a seizure, should have been fraudulently undervalued in the separate appraisement of the land and the movables, made with the view to fix the pro rata of the proceeds of sale, to he paid to the mortgage claim upon the land and to the privileged claim upon the movables. The relief of the privileged creditors upon the movables, if any they have, is limited to the setting aside of the fraudulent appraisement, and to a distribution of the price upon a new valuation. Succession of Lenel, 31 An. 868.
    It is not a ground for setting aside a judicial sale that the writ under which the property was sold issued for a larger amount tbanwas due (Lynch vs. Kitchen, 2 An. 8431, nor because, prior to the sale, the seizing creditor had consented, in the event of his purchasing the property, to make a subsequent disposition of it to a third person in the interest of the seized debtor. The subsequent disposition might be attacked, but the sale should stand, as the creditor in seizing, selling and purchasing, would have only exercised a legal right. 43 An. 432, 873.
    Where a mortgage creditor has seized a plantation, subject to his mortgage, together with all the mules, carts, agricultural implements thereon, in view of an anticipated sale of the property and the realization of a fund therefrom, the laborers who claim a privilege for payment of wages due them have an unquestionable right to present their claims to the District Court by way of third opposition, without reference to the amounts claimed by them being within the jurisdiction of that court. Shiff vs. Carprette, 14 An. 802.
    In their contention the laborers had a common interest in invoking the aid of the district court; the aggregate amount of the claims in dispute being over two thousand dollars, the appeal by plaintiffs to this court will be maintained.
    The proceedings attacked as fraudulent, were ordered in a suit in the parish of St. James. The seized debtor and the seizing creditors, charged with collusion, are necessary parties to such an action. The seized debtor resided in the parish of St. James. The proceedings were properly attacked in the court of his domicile. Having issued the orders, the District Court of St. James was the proper tribunal to pass upon the issues.
    A PPEAL from the Twentieth Judicial District Court for the Parish ■i* of St. James. Guión, J.
    
    A number of laborers, creditors of one Auguste Servel, unite in a joint petition claiming amounts due them by Servel for wages for labor performed by them in his employ on his Golden Grove plantation, in the parish of St. James, from September, 1898, to February, 1894, in planting, winrowing and planting cane, and in harvesting and manufacturing into sugar the cane crop on said plantation in the year 1893. That to secure the payment of their claims they have a privilege, under Art. 3217 of the Civil Code, on all the mules, carts, agricultural implements and other things which serve for the working of the plantation. That Ermann & Oahn, as holders of mortgage notes drawn by the said Servel, applied for and obtained a writ of seizure and sale in the District Oourt of the parish of St. James, and under said writ the sheriff of said parish seized and advertised for sale in block, the said plantation, together with forty-five mules, nineteen three-mule carts and other movables on which they had a privilege, as aforesaid, superior in and priming the mortgage rights of the seizing creditors, and on the 12th day of January, 1895, said plantation and movables, were, by said sheriff, acting under said writ, adjudicated in block to said Ermann & Oahn for the price of seventeen thousand seven hundred and thirty-five dollars, as the whole would appear by the record in that suit. That petitioners became intervenors and third opponents in said case of Ermann & Oahn vs. Servel, and in order to preserve their privilege, and to adjust their rights with those of the seizing creditors, they applied for and obtained an order for a separate appraisement; (1) of the Golden Grove plantation, and (2) of all the movables serving for the working of said plantation, and effected with a privilege in favor of petitioner, as aforesaid, said movables comprising forty-five mules, nineteen three-mule carts, and all the agricultural implements ; that the said adjudication of the said plantation, and movables made to Ermann & Oahn, on the 12th January, 1895, and the sheriff’s deed executed subsequently to said adjudication, are null, void and of no effect for the reasons:
    1. Because the aforesaid order of the court, directing that the said plantation and movables be separately appraised, was disobeyed and disregarded.
    2. Because the naked plantation was intended to be appraised at nineteen thousand dollars, which is about its real value, while alj the movables, comprising forty-five mules, nineteen three-mule carts, all the agricultural implements and other things which serve for the working of the plantation, were not appraised in detail or minutely as required by law; but were appraised in block, at one thousand dollars only — that is, at one-third or one-fourth their actual value — and said appraisement is fraudulent, and is the result of collusion between Ermann & Oahn and the said Serval, for the purpose of depriving petitioners of their just rights.
    
      3. That the mortgage notes, on which executory process issued in the case of Ermann & Oahn, were originally held by Miss P. A. Hopkins, who had instituted executory proceedings against the said Servel. Large expenses had been incurred under her seizure of the said plantation, amounting to eight thousand two hundred and ninety-nine dollars, which were decreed to be paid by priority over said mortgage notes, amounting to twenty thousand dollars. By an act passed about the 9th of June, 1894, before Felix J. Dreyfous, a notary public for the parish of Orleans, said notes and the mortgage rights of the said Miss Hopkins, under her seizure, were transferred to the said Ermann & Oahn for the price of thirty-two thousand three hundred and forty-three dollars, and the said Ermann- & Oahn caused themselves to be substituted as plaintiffs in said case of Hopkins vs. Servel, and then released said seizure; that a large part of said price of thirty-two thousand three hundred and forty-three dollars, paid by Ermann & Oahn for the purchase of said notes (they allege about fifteen thousand dollars of said price) were furnished to them by the said Auguste Servel for the purpose of making said payment. That there was at the time of the sale of the plantation, on the 12th of January, 1895, and there was still a private agreement between the said Ermann & Oahn and the said Auguste Servel, by which the former was to retrocede, and sell the Golden Grove plantation to the said Servel, through a third person, for a bonus, and the difference between the cash actually paid by the said Ermann & Oahn and the said sum of thirty-two thousand three hundred and forty-three dollars.
    That a proposition substantially similar had been made to Miss Hopkins, through her counsel, while the plantation was under her seizure. That the mortgages on said property exceed one hundred thousand dollars.
    That since the adjudication to the said Ermann & Oahn, one Pierre Sehepp, a confidential friend and adviser of the said Servel, and his alter ego in the protection of his interests in the protracted litigation in which the said Golden Grove plantation was involved, has been in charge of the same, employing overseers, working it in his own name, but for account of the said Servel. That, as a part of a long concocted scheme to cover up and shield the Golden Grove plantation from the pursuit of his creditors, the said Servel, on the 29th July, 1889, by act before Gaudet, notary public, executed a simulated mortgage on said plantation, second in rank, and still of record, in favor or the said Pierre Schepp, for thirty thousand dollars. That no consideration was paid for said mortgage, which is a pure fiction, and has no legal existence.
    Ermann & Oahn excepted to plaintiff’s demand; that the court was without.jurisdiction, rationse personse, as the firm of Ermann & Oahn', and the individual members thereof were residents of the parish of Orleans, and are not suable in the parish of St. James. That there was a misjoinder of both plaintiffs and defendants. That the petition sets forth no cause or right of action, and discloses no interest in the plaintiffs in attacking the mortgage of Ermann & Oahn, or the sale and adjudication made to them. That the plaintiffs are estopped and debarred from suing to annul the sale or adjudication to the defendant or the mortgage, under which said sale was made for the following reasons:
    1. That the plaintiffs, claiming a laborers’ privilege upon the growing crop of said plantation for the year 1893, and also on the crop of 1894, entered into an agreement with Ermann & Oahn, recognizing them as mortgagees, and as holding and owning the mortgage under which the adjudication was made, and by the terms of which agreement plaintiffs accepted in compromise and settlement, of their alleged claim and lien on the said crop, the sum of eight hundred dollars; that having by this agreement recognized the validity and genuineness of the mortgage sued on by them, and having received a benefit therefrom under said compromise and agreement, the plaintiffs are estopped from contesting or disputing the same.
    2. That the plaintiffs filed a third opposition in the said mortgage foreclosure proceedings, and claimed the laborers’ privilege upon the working animals and implements described in their petition, secured an order of court for the separate appraisement of same, appointing under said order an appraiser who acted on their behalf in appraising the property, and also obtained an order, directing that the proceeds arising from the sale be retained in the hands of the sheriff; that said appraisement was effected, and that having thus claimed the proceeds, they recognized the validity of the mortgage of Ermann & Oahn, and of the proceedings merging into said sale, and are now estopped from attacking said mortgage or suing for the nullity of the sale.
    3. That the plaintiffs were present at the offering and sale of said plantation under the writ of seizure and sale complained of; that they made no protest or objection to the said sale, but, on the contrary, by and through their duly authorized attorney at law, made several repeated bids on said plantation and ran the same up to the final price of adjudication, seventeen thousand seven hundred and thirty-five dollars, the said attorney and representative of said plaintiffs repeatedly declaring during the process of offering for sale that he was bidding on the property for his clients and intended to run the same up to its full value in order that the pro rata division of the proceeds coming to his clients (the plaintiffs) would be correspondingly augmented; that by these acts and conduct of the-plaintiffs, manifested on every preliminary leading up to and during the sale, in which they took an active part, they are estopped from attacking the validity of the mortgage under which the executory' process ran and the sale and adjudication had thereunder.
    The exceptions filed by the defendants were sustained.
    Plaintiffs appealed.
    
      J. V. Ohenet and B. R. Forman Attorneys for Plaintiffs and Appellants :
    A suit involving the title to real estate, and the nullity of judicial proceedings resulting in a sale of real estate can be brought in the parish where the property is situated, without regard to the domicile of the defendants. O. P. 163.
    Creditors having a common interest may join in a suit to annul a sale and reduce a mortgage on the property of the common debtor. 20 An. 254, Boon vs. Beenel; 28 An. 517, State ex rel. Roudanez; 33 An. 1351; 34 An. 201, State ex rel. St. Cyr vs. Jumel.
    Plaintiff’s evidence need not be set forth specifically in his petition. Specifying one of the ways in which plaintiffs have been defrauded does not preclude them from giving evidence of other acts tending to establish the same fraud practiced upon them. Miller vs. Bedell, 21 An. 573; Beels vs. Knight, and N. S. 268 j Montgomery vs. Chaney, 13 An. 207, and if a petition be vague the order should be to amend and not to reject.
    A fraudulent conspiracy between a plaintiff in executory proceedings, suing on a mortgage largely in excess of the amount-really due, and the defendant, by a fraudulent appraisement of a part of the property on which other creditors of the debtor have a privilege, to buy in their property at a vile price, and cheat the privileged creditors, gives a cause of action to annul the sale so procured and to reduce the mortgage. Jackson vs. Ludeling, 21 Wallace, 616; Oordeville vs. Hosmer, 16 La. 590; McDonough vs. LeRoy, 1 R. 173; Succession Hiligsberg, 1 An. 340; Zacharie vs. Winter, 17 La. 76.
    Laborers have a privilege on things which serve for the working of the plantation. O. O. 3217; 36 An. 184; 34 An. 535; 28 An. 749; 32 An. 1285.
    An attorney at law employed to collect a debt, has no authority (unless especially authorized thereto) to buy a plantation for his clients, and after vainly protesting against a fraudulent and unjust appraisement, he can not, by bidding at the sale, estop his clients from attacking the sale for fraud.
    Lazarus, Moore & Luce for Defendants and Appellees:
    Every one must be sued at his domicile, unless in such cases as are excepted under the Code of Practice. This is not one of the exceptions, and is no suit to annul judgment. C. P. 162, 163; Stapleton vs. Butterfield, 34 An. 822.
    Plaintiffs between whom there is no paivity of contract or community of interest can not be joined in one suit. Dyas vs. Dinkgrave, 15 An. 502; Mavor vs. Armont, 14 An. 177.
    Distinct demands, by different plaintiffs can not be cumulated so as to give jurisdiction. Marshall vs. Holmes, 39 An. 312; Harrison vs. Morse, 41 An. 239.
    To annul a sale or mortgage as simulated and void, one must have an interest affected thereby, or sustain an injury which can be redressed by the avoidance.
    One can not avoid a judicial sale without alleging and showing an injury. 6 An. 61; 8 An. 503; 31 An. 840; 43 An. 526.
    One who has intervened, claiming the proceeds of a sale, and who has bid at the sale, is estopped from alleging or showing a simulation of the mortgage under which the sale was made and the nullity of the sale. O. P. 149, 612; Bank vs. Delery, 2 An. 648; Livaudais vs, Livaudais, 3 An. 454; Harper vs. Bank, 15 An. 136; Ouliber vs. Creditors, 16 An. 288; Howe & Whited vs. Gibbs, 21 An. 495; Frere vs. Mentz, 23 An. 547; Blessey vs. Kearney, 24 An. 289; Slocumb vs. Williams, 22 An. 136; Provosty vs. Carmouche, 23 An. 245; Walker & Vaught vs. Kimbrough, 27 An. 558; Ooleman vs. Ooleman, 37 An. 566.
    There being no averment that the appraisers who made the appraisement acted fraudulently and eollusively, the averment that Ermann & Oahn and Servel colluded carries with it no cause of action, in so far as it may have affected the action of the appraisers in making the appraisement. To have been a fraudulent appraisement, the appraisers must have been parties to fraud and collusion; and there being no averment to that effect, the petition in this respect shows no cause of action.
    Argued and submitted, April 26, 1895.
    Opinion handed down, May 6, 1895.
   The opinion of the court was delivered by

Nicholls, C. J.

The first questions which arise are those respecting the jurisdiction of the two courts.

Ermann &0ahn, as mortgage creditors of Servel, seized under ex-ecutory proees, the plantation which was subject to their mortgage, together with all the mules, carts, agricultural implements thereon. At the time of the seizure of these parties, the movables, it would appear, were under seizure by the laborers, claiming a privilege through writs of provisional seizure. In view of an anticipated sale of the property and the realization of a fund therefrom, the laborers had an unquestionable right to present their claims to the District Court by way of third opposition, without reference to their being under fifty dollars. Shiff vs. Oarprette, 14 An. 802. The seizing creditors consented, so far as form was concerned, to their joining in a single petition.

The sale, with reference to which this third opposition was framed, having taken place (subsequently to the filing of the same) in a manner which the third opponents contend was unauthorized by law, they subsequently united in the present action, attacking the appraisement made prior to the sale, and the sale itself. Assuming that they could maintain this contention, they had a common interest in invoking the aid of the court to set the sale aside. We think .that the District Court, as to amount and jurisdiction of the cause, and that plaintiffs’ appeal to this court, must be maintained — the aggregate amount of the claims and of the matters in dispute being over two thousand dollars.

We think the District Court had jurisdiction of the case, in so far as the domicile of parties was concerned. The plaintiffs attack certain proceeding ordered by the District Court for St. James to be taken in a suit pending before it, prior to and leading up to a judicial sale. They claim that these orders were not carried out, that the proceedings were fraudulent, and that the nullity of the sale would follow as a legal consequence. To such a suit the seizing creditors and the seized debtor, who are charged as having colluded in bringing about the illegal act, were necessary parties; the seized debtor was a resident of the parish of St. James, and the judicial proceeding attacked was before the court of his domicile. We think that court was the proper one to pass upon that issue.

Defendants rely, as we have seen, upon their exception of no cause of action, and of estoppel. To a certain extent at least, they can be taken up together, and we postpone a separate discussion of the question of estoppel until after we shall have examined and ascertained whether the demand of the plaintiff discloses a cause of action.

. We do not think that the allegations of the plaintiffs, charging that Servel furnished Ermann & Oahn a large portion of the money with which they acquired the Hopkins mortgage, charging that at the time of the adjudication of the property, and at the time of the institution of this suit, there existed a private agreement between the seizing creditors and Servel, by which the former was to retro-cede the property to the latter through a person interposed; that since the adjudication the property has been in the possession of Pierre Schepp, a confidential friend of Servel, who is working it in his own name, but on account of Servel, and that a fictitious mortgage, inferior in rank to that of the seizing creditors, -was consented to by Servel in favor of Schepp, would, if true, lead up to the nullity of the judicial sale and to the granting of the relief which plaintiffs ask at our hands.

Granting that Servel furnished Ermann & Oahn with a portion of the money used by them in obtaining the transfer to them of the Hopkins mortgage, the effect of that fact would simply be to operate & payment pro tanto of the indebtedness to Miss Hopkins, and Ermann & Oahn would still remain the owner of her claim, reduced, it is true, but none the less a claim secured by mortgage on the property, entitling them to executory process, and to a sale under the writ. If Ermann & Oahn proceeded upon their claim, with no other objection to their course than that the amount for which the writ issued and the property was sent to sale was too large, that fact would not affect the validity of the title, but simply the question as to the payment of the price. Lynch vs. Kitchen, 2 An. 845; Gay vs. Hebert, 44 An. 301; Truxillo vs. Delaune, 47 An. 16.

If the effect of the partial payment, through money furnished by Servel, was to reduce Ermann & Oahn’s claim below their purchase price, they would have to hold the surplus, subject to proper payment to parties entitled to receive it.

The plaintiffs do not deny that at the time of the order of seizure and sale, and of the adjudication, Ermann & Oahn held a claim secured by mortgage on the property. They do not deny that they had the legal right to the order of seizure and sale which was issued upon their petition. No objection is made to any portion of the proceedings until the appraisement is reached, and the appraisement is attacked, not as to the valuation placed upon the plantation itself, but upon that assigned to the movables which were to be sold with it. If plaintiffs had the legal right to a separate sale of the movables, under their privilege and seizures, they expressly waived it, and consented to a sale in block. If plaintiffs claimed the legal right to ignore the sale under the mortgage, and to assert that their privileged rights remained upon the objects struck by their privilege, unaffected by the sale under Art. 3216, O. 0., as giving them a separate, independent, direct remedy to be directed in spite of the sale against the mules, carts and agricultural implements effected by their privilege, they waived it, and consented that they should receive their pro rata from a sale in block. The case, with reference to the result of the simple fact that Servel had furnished a portion of the money with which the Hopkins claim was bought, is one where a mortgage creditor had issued a writ for too large an amount, and had under a writ of seizure and sale, which had issued under such circumstances, bought in the property. We leave out of view for the moment, and in making this statement, the objections raised to the appraisement made upon the movables. Granting that Ermann & Cahn, under their proceeding, could have acquired and did acquire a valid title to the property, we do notthink that that result was injuriously affected by the existence, either at the time of the order of seizure and sale, or of the adjudication of an agreement, that after the sale should have taken place Ermann & Cahn would retrocede the property to some third nerson for the benefit of Servel.

If these parties had a legal mortgage on the property, they were free to enforce it, and if they enforced it, and cut off by becoming purchasers at the sale, all rights of the creditors of Servel, upon the property itself, transferring whatever claims creditors might have to the proceeds of sale, they were at liberty to do with their own what they pleased, and if they thought proper to transfer the property to a third person, in order that Ermann & Cahn might derive a benefit from it, that fact could not result in divesting them of rights which had legally vested in him under their execution. Gilkerson- Sloss Com. Co. vs. Bond & Williams, 44 An. 844. The creditors might, perhaps, (if the special agreement was one which would enable their debtor to evade their pursuit in the future), attack the agreement itself or make it turn to their own advantage, but they could not oust the purchaser from the property.

It is claimed by the plaintiffs that the adjudication to Ermann & Cahn was a simulation.

We do not see what bearing the mortgage granted to Schepp, or what bearing Schepp’s present possession of the property, has upon the validity of the judicial sale made to Ermann & Cahn.

We now come to the real contention of the plaintiffs, which is, that by reason of what they claim to have been a fraudulent undervaluation of the movables upon which their privileges rested, they have the right to have the entire sale annulled and set aside. We are referred to cases where sales have been set aside by reason of no appraisement, or of an improper appraisement having been made.

In this particular case, the plantation, it is conceded, was properly appraised. The movables which were sold with the plantation in block, were sold in that manner, by express consent, b'y appraisers appointed in the precise manner which opponents asked for. The object of the third opposition on their part was to obtain their pro rata from the sale. They claim that on account of fraud in the valuation of the movables, their pro rata has been made to be too small. We do not think, that in order to reach the proper pro rata (assuming that there was fraud, and their pro rata was really too small), aud in order to obtain relief after the sale has taken place, the entire sale should be sec aside. Plaintiffs only interest is to obtain a larger amount of money from the sale than would be assigned to them as matters stand. Relief could have been obtained by them without the necessity of upsetting the entire sale. By proper allegations they could have attacked the appraisement, asked that it be set aside, a new one ordered, and that the rights and obligations of parties should be adjusted and apportioned under the new one. This relief they have not asked, and under the pleadings we can not grant it. We make the last statements upon the theory that they would not be estopped by remaining silent until after the sale, nor by the action of their, counsel in bidding at the sale. Whether or not they would be estopped in asking relief to this extent is a question which we need not discuss, as it is not properly before us.

We think the judgment of the District Court, in so far as it finally closes an attack by the plaintiffs upon the judicial sale, is correct. We do not understand it to go any further, or to conclude the plaintiffs as to any right and remedy they may have in respect to seeking to have the appraisement of the movables set aside for fraud, a new one taken, and an adjudication made of the rights and obligations of parties had on the basis of a new appraisement of the movables, all questions upon that subject are left open by the judgment, and so construing it, we affirm the judgment appealed from.  