
    
      BAUDIN vs. ROLIFF & AL. ROBERTSON & AL. Interpleaders.
    
    
      Appeal from the court of the third district.
    
    
      A judgment of dismissal, is nothing more than one of non-suit, and does not form rem judicatam on any of the maters at issue.
    
    
      When in tracing title & judgment makes part of the muniments of an estate it is not necessary to give the proceedings on which it was founded.
   Porter, J.

delivered the opinion of the court. The petitioner alleges that in the year 1817 he recovered judgment against the heirs of Phillip L. Alston, for the sum of $5360, with interest at five per cent. from the 16th February 1814, and that the said sum was ordered to be made out of a tract of land containing 1000 arpents, situated on the Bayou Tunica.

East'n District.

April, 1823.

Strangers to a judgment cannot be received to attack it on the ground of irregularity, or being rendered on insufficient evidence.

Payment of the price by the bidder at a sheriff's sale is indispensable to a transfer of the property, unless the plaintiff waves it.

But if the defendant obtains credit for the amount, he cannot object to any arrangements by which the plaintiff has released the purchaser.

The vendees consent may be shown by evidence dehors the deed of sale.

To set aside a conveyance on the ground of its being fraudulent, there must be fraud in vendor, vendee, and the alienation must have been made to injure creditors.

That this amount of $5360 was bid by the ancestor of the heirs, on the 14th of August, 1802, for the said tract of land, at that time, and by subsequent proceedings of John O'Conner, alcade of the fourth district, sold as the property of Oliver Pollock—that it had been since sold in due form of law to the petitioner, in virtue of his judgment against the heirs of Alston, for the sum of $4490, by reason of which he had acquired a title to the premises, and had been put in possession of the same.

That certain persons, viz. Oliver Roliff and others, had illegally entered on the premises, and though often requested, had refused to remove therefrom.

Samuel Robertson and wife filed their bill of intervention, in which they stated that they were the lawful owners of 500 acres of land, situated in the parish of Feliciana, the title to which they acquired in the following manner. That a certain Oliver Pollock being the proprietor of 2000 acres of land, situated on the river Mississippi, including the mouth of the Bayou Tunica, did, on the 23d day of May, in the year 1801, by deed of conveyance, legally and duly executed, sell and dispose of the said tract of 2000 acres, to a certain Janett Pollock; that afterwards, on the 15th September 1802, the said Janett Pollock sold the undivided half to a certain Lucilla Pollock, who by last will and testament devised the undivided half of this portion owned by her, to Mary S. Robertson, one of the petitioners.

The decision of a jury always prevails on questions of fraud.

And if it is not clear that the verdict was founded on it, the cause will be remanded for a new trial.

After thus exhibiting the nature of their title, the interpleaders go on to state that they may be injured by the proceedings carrying on against the original defendants; they therefore pray leave to intervene—be made parties, and that the right to the land and possession of it, may be decreed to them.

They were admitted as parties, and subsequently filed the following pleas:

That Baudin had not a good title to the premises; that they, the interpleaders, had—and that in addition thereto they held the land by 10 years prescription.

The cause was submitted to a jury, who found a general verdict for the plaintiff, there was judgment accordingly, and the defendant appealed.

In this court, it has been contended by the plaintiff, that all the matters and things now in contest between the parties in this action, have been definitively settled in a former suit.

The decree, which is contended to have that effect, was given in an action in which the present plaintiff sued the heirs of P. L. Alston, to compel them to comply with a purchase made by their ancestor, of a certain tract of land sold to satisfy a judgment he had obtained under the Spanish government against O. Pollock. In his petition the plaintiff alleged that the reason why Alston had not complied with his contract, was, that certain persons, and among others the interpleaders in this cause, had set up a title to the premises—and he prayed that they might be compelled to produce their title, if any they had, in order that it might be adjudicated on, and that they might also be compelled to deliver up possession of the premises, as the property of Oliver Pollock.

To this petition, the parties now intervening put in a defence, containing a general denial of all the allegations therein.

On the issue thus joined, the court decreed that the petition should be dismissed, and the defendants have judgment against the plaintiff for costs of suit.

The plea of res judicata is not sustained by this judgment. If it was at all final, it was in favour of the defendants, not against them; but we consider it one of non-suit, which settled nothing but the costs in that cause, and left undecided all questions growing out of the pretensions of the respective parties.

After this judgment we find another on the record, for the defendants generally. Whether the parties against whom the petition had been dismissed, were included in this, and the appeal taken from it, we cannot discover, but considering it as if they were, the result is the same; for the judgment of the district court on the second trial after the cause was remanded, is confined expressly to the matters in dispute between Baudin, and the heirs of Alston, and reserves the rights of all the other parties.

Proceeding, therefore, to examine the case on its merits, the first thing to be inquired into is the title of the plaintiff.

He shows a grant from the Spanish government to Trudeau for the premises, and a sale from Trudeau to Oliver Pollock, and so far no particular objection has been made. The next link in the chain, it is contended by defendants, is wanting, and they object; that the foundation of the plaintiff’s claim is the proceedings had in the year 1802, against O. Pollock, and that instead of producing a copy of these proceedings, he has only offered in evidence the judgment which was the result of them. We are, however, of opinion that it was not necessary for the plaintiff to do so, and that when, in tracing title, a judgment makes a part of “ the muniments of an estate,” that it is not necessary to give in evidence all the proceedings on which it is founded. We cannot indeed see on what ground, or for what useful purpose, it could be required. If the appellants held the property in right of Oliver Pollock, we could not inquire collaterally into the merits of the judgment. Dufour vs. Camfranc, 11 Martin 604. If they are strangers to him, there is still less reason to permit them to assert his privileges, or dispute the validity of the judgment against him. It is not introduced as binding per se on their rights, but as an introductory fact necessary to make out the chain of title. We do not know that Pollock himself would oppose it, so that third parties might in this way obtain a benefit for a defendant, that he did not wish to profit by himself, but we understand the rule to be, invito benificium non datur. Dig. liv. 50, tit. 17, l. 69.

The same answer must be given to the third objection, as to whether the attorney in fact, who represented Pollock, was regularly authorized to do so, and to that which complains that it is not shown that Conway was subrogated in Baudin’s rights. The evidence on which the Spanish tribunal directed the property to be sold to satisfy both the balance due Baudin on the judgment, and the money which the surety had already paid, is not before us. We must presume, until the contrary is shown, that Conway was duly subrogated in the rights of the creditor he had paid, more particularly when that creditor joins in a petition that a sale should be made to satisfy the surety. The appellant has doubted whether such subrogation could be made under the Spanish law, but it appears quite well settled that it could. Curia Phillipica, lib. 2, c. 6. Cesion, nos. 40 & 43.

It is next urged that there was a novation of the debt due, and we have been referred to several documents from the 185th to the 195th pages of the record in support of this position ; but on examination we see no ground whatever for it to rest on. The first instrument is one in which the obligor expressly binds himself as surety for the principal debtor, Pollock. The second is the security furnished by the executor of Conway, in consequence of having all the property adjudicated to him; and the third is a change in the surety furnished by the executor. Even if they had operated as a novation, that might have been a question between Baudin and Pollock, but cannot be agitated now. Such a doctrine would render it nearly impossible to find bidders at sheriff sales. For men would not buy property under the obligation to enter into all the questions discussed on the trial between plaintiff, and defendant, and try the cause over again in which the execution issued.

The next objection, and that mainly relied on by the defendant, is that the right, title and interest of Pollock to this land never passed to Alston the purchaser, and consequently that Baudin, in buying Alston’s right, did not acquire a good title to the premises in question. In support of this position, it has been principally contended, that Alston bought the land on a judgment in favor of Baudin and Conway, that he never paid the price, and that not having done so the title was not in him, as it did not pass by the adjudication, without the payment of the purchase money.

That the payment of the price, by the bidder at a cash sale by a sheriff, is indispensable to a transfer of the property, if required by the plaintiff at whose suit the sale takes place, we concede. But this condition is one which is introduced for the benefit of the person to whom the money is to be paid, and consequently may be waved by him if he thinks fit. If he chooses to give a receipt for the sum for which the property sold, and acknowledge satisfaction on the execution, the title will vest in the buyer, although the latter may have given his obligation to pay at a distant day, or even have obtained a release without making any payment whatever. We regard the payment as a question entirely between the person at whose suit the property is sold, and the bidder, one with which the owner of the property has nothing to do except to insist that their arrangements shall not deprive him of the right to be credited on the judgment for the amount for which the property was stricken off. The plaintiff under a judgment in his favor, like the vendor by private sale, may release the purchaser if he chooses, provided he gives the defendant the benefit of the proceeds. The right to abandon the price altogether, implies that of modifying it as he chooses.

In the case now before us Baudin, either from circumstances over which he had no control, or from other reasons, let a number of years elapse before he brought suit to make the vendee comply with his contract, but in that suit he obtained judgment against him for the price. This surely was an affirmance of the sale, for it was a claim to have the benefit of it. An execution issuing under this judgment might legally be satisfied out of the land which formed the consideration of the contract on which that judgment was rendered. For the title vested in the buyer, the moment the plaintiff had his demand to enforce the sale, sanctioned by a judgment of the court.

The case of Durnford vs. Degruy's syndics, 8 Martin 220, contains nothing contrary to this, for there the plaintiff insisted on having the benefit of the forfeiture created by the buyer’s failure to comply with his bid, and claimed the right of selling the property again. The observations of the court must be understood in relation to the facts then before them.

It is contended that the land was sold at the suit of Conway and Baudin; that Baudin alone brought an action against the purchaser, and that it required the plaintiff to show that both the persons, for whose benefit it was disposed of, should have affirmed this contract by suing for the price. The judgment of the Spanish tribunal was, that the premises be sold to pay Baudin what was due of the original judgment, and to satisfy Conway the surety, for what he had already paid for Pollock. As the amount which Baudin has received does not appear to exceed the balance due him, we think there is not any weight in this objection. Conway could only claim a share in the execution in case of an overplus.

Disposing of these objections, brings us to the title of the defendants, and the question which arises on it, is one of greater difficulty than any other the case presents. They claim under a sale of the premises from Oliver Pollock to Janett Pollock, dated on the 23d March 1801.

The sale is attacked by the plaintiff on several grounds,

1st. Because the vendees assent to the conveyance is not given in the instrument by which the land is sold to him. This objection we think unfounded. Consent may be shown by evidence dehors the instrument, and in this case it is proved by the buyers afterwards conveying part of the premises, and declaring they were the same which he had acquired by deed from O. Pollock. Bradford's heirs vs. Brown, 11 Martin, 217.

2d. Because, it was made under circumstances which render it subject to a just suspicion of being done with a fraudulent design. Admitting this to be proved, we would not be authorised to annul the sale; it is not a just suspicion of fraud, but fraud itself, that should be the result of the evidence.

Whether the sale was fraudulent or not, is the main subject of inquiry. If it was not, it appears to us to have legally passed this title to Pollock, antecedent to the sale to Alston. If it was, the defendants are without title. Fraud is never presumed, except in cases of bankruptcy, it must be proved, and it must be proved both in the vendor and vendee, with the additional circumstance that the alienation has produced an injury to creditors. The facts from which it may be justly inferred, it is impossible to state. Each case must depend on its own circumstances. In this before us, we are unable to say that it has been satisfactorily established.

We are prevented from acting on this conclusion and giving judgment accordingly, by reason of a verdict obtained by the defendant in the court below. It has been repeatedly decided in this court that in cases where fraud was put at issue, we should readily yield our conclusions, to that which twelve of our fellow citizens, hearing the witnesses, and knowing the parties, had formed on the same matter. The difficulty of acting in obedience to this rule in the instance before us, arises from the loose manner the pleadings are made up. It does not appear from them, that fraud was alleged or denied, though from the proof adduced, and the course the cause has taken, it is extremely probable it was submitted to the jury and entered into the consideration on which their verdict was founded. Under these circumstances we think the safest course we can adopt, is to remand the cause for a new trial. The Opinion now delivered on the various points made respecting the written title of each party will probably narrow the enquiry on the next investigation,to the single question, whether the conveyance from O. Pollock to J. Pollock was fraudulent, or not. On such an issue, a jury are so emphatically more competent than this tribunal to arrive at the truth, that justice to the parties, requires the case should be acted on by that body.

The plea of prescription does not appear to us to be sustained, the record shews that a suit was pending in the beginning of the year 1803 between Hamilton Pollock in behalf of Janett Pollock, and the present plaintiff in regard to this land, and we cannot learn that it was terminated ten years before the suit commenced by Baudin in the year 1814. The fact of possession also is not so clearly established as it might be ; but admitting that it is fully made out, the pendency of the suit interrupted the prescription.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed that this case be remanded for a new trial and that the appellee pay the costs of appeal.

Preston, for the defendant, Moreau, for the plaintiff.  