
    (133 So. 761)
    PONTCHARTRAIN REALTY CO., Inc., v. PASSERA et al.
    No. 30912.
    Feb. 2, 1931.
    Rehearing Denied March 30, 1931.
    Dart & Dart and Leo L. Dubourg, all of New Orleans, for appellant Pontchartrain Realty Co., Inc.
    J: Zach Spearing, A. D. Danziger, and Emmet Alpha, all of New Orleans (P. IX. Stern, of New Orleans, of counsel), for appellee Mrs. Victor J. Passera.
    Delvaille H. Theard, Percy S. Benedict, Arthur J. Peters, Harry McEnerny, Jr., and Azzo J. Plough, all of New Orleans, amici curiae. '
    
   ODOM, J.

This is an injunction proceeding by which Mrs. Victor J. Passera seeks to restrain the plaintiff and the civil sheriff of the parish of Orleans from proceeding further under a writ of executory process and from selling certain real estate situated in the city of New Orleans.

The facts are that on April 30,. 1925, the plaintiff company sold to Victor J. Passera et al. a certain-tract or parcel of ground situated in the Third district of the city of New Orleans, containing approximately 165 acres, for a total, consideration of $221,114.71, of which amount $44,222.94 was paid in cash, the balance of the price, or $176,891.77, being represented by one note secured by vendor’s lien and special mortgage on the property sold. The vendees failed to pay the interest installments on the notes as they fell due, and the plaintiff proceeded by executory process to foreclose the mortgage. The property was seized and advertised to be sold by the civil sheriff of Orleans parish at public auction for cash on April 17, 1930. On the date and at the hour set for the sale, Mrs. Passera, the plaintiff in this injunction, appeared in person at the real estate exchange where the property was advertised to be sold, and bid it in at the price and sum of $212,000.

In the advertisement it was specified that the purchaser at the moment of the adjudication would be required to deposit 10 per cent, of the purchase price, and in compliance therewith Mrs. Passera deposited with the sheriff the sum of $21,200. But she refused to comply further with her bid by paying the balance of the price in cash within thirty days from the date of the sale, and, proceeding under Act 316 of 1908, page 482, the sheriff on demand of the seizing creditor, readvertised the property for sale “at the risk and for the account of the former purchaser,” Mrs. Passera.

Mrs. Passera then brought the present suit to enjoin the seizing creditor and the sheriff from proceeding further under the second advertisement, and from making a second sale of the property, alleging substantially as her cause of action that she became the purchaser thereof at its first offering on April 17, 1930, and then and there made the required deposit, and that she is entitled to have delivered to her the property which she purchased; that the property was advertised and sold as one continuous and unbroken tract of approximately 165 acres, whereas in fact the property had previously been subdivided into lots and squares with designated streets and roads running through it which had been in various ways recognized and dedicated to the public for use as such, and that therefore said property is not in fact one continuous, unbroken tract; that after deducting from the tract the area of the. dedicated roads and streets, which could not be sold, the remaining acreage is less than nineteen-twentieths of that advertised and sold, and that she is entitled to receive, not only one continuous, unbroken tract but one containing 165 acres.

She further alleges that there are lawsuits pending affecting the property, and that the title thereto is suggestive of litigation and not merchantable. She prays for a preliminary restraining order, and that a decree be entered ordering the seizing creditor to take such steps as are necessary to perfect the title to the tract of land so that there may be conveyed to her a legal title to a continuous, unbroken tract containing 165 acres, “and until said title is perfected, the Pontchartrain Realty Company, Inc., and the said M. J. Hartson, civil Sheriff for the Parish of Orleans to remain enjoined from proceeding with the sale of the property herein described.”

The court refused to issue a temporary restraining order, but ordered the seizing creditor and sheriff to show cause on a day fixed why a preliminary injunction should not issue as prayed for. After a.hearing on the rule the court ordered “that said rule be made absolute and accordingly that a preliminary writ of injunction issue herein restraining and enjoining the Pontchartrain Realty Company, Inc., and M. J. Hart-son, civil Sheriff from advertising and/or selling said property under Act 316 of 1908 at the risk and peril of Mrs. A'ictor J. Pass-era, upon the plaintiff in rule, Mrs. V. J. Passera, furnishing bond according to law in the sum of Eifteen Thousand ($15,000.00) Dollars.”

Erom this judgment the seizing creditor and the sheriff appealed.

The property involved in this litigation is real estate situated in the parish of Orleans, where it was ordered sold by the sheriff under executory process.

In proceeding to readvertise the property for sale after Mrs. Passera, the adjudieatee at the first sale had refused to pay the balance . of the purchase price within thirty days, seizing creditor and the sheriff followed the letter of Act 316 of 1908, which has reference to all sales of real property made by sheriffs and constables in parishes of the state containing two hundred thousand or more inhabitants. As shown by the advertisement, the property was to be sold for cash, the purchaser t;o deposit at the moment of the sale 10 per cent, of the price. Mrs. Passera became the adjudicatee of the property at the price and sum of $212,000, and complied with her bid to the extent of making t;ke required deposit of $21,200 but refused to comply further with the terms of the sale and with her bid by paying the balance within thirty days from the date of sale. Section 3 of the Act; of 1908 reads as follows:

“Be it further enacted, etc., That unless within thirty days from the date of any sale made as aforesaid the entire purchase price be paid, then on demand of any parly in interest the Sheriff or Constable shall advertise the property for sale after fifteen days’ notice and three advertisements within that time, and the sale shall be at the risk and for the account of the former purchaser, and should there be any loss by reason of said second sale the first purchaser shall be liable therefor, but should the property at the second sale bring an increased price, the first purchaser shall have no right to any portion of said increase.”

This law is clear and free from all ambiguity. In express terms it applies to all sales made by sheriffs and constables in those parishes specified. It confers upon any party in interest the right to demand that the sheriff or constable readvertise the property for sale in all cases where the adjudicatee at the first offering fails to pay the entire purchase price within thirty days from the day of sale, and upon such demand the sheriff or constable has no discretion, but “shall advertise the property for sale after fifteen days- notice, * * * and the sale shall be at the risk and for the account of the former purchaser.”

But counsel for Mrs. Passera say in brief: “We contend that the provisions of this Act can not be invoked where the seizing creditor is unable to tender a good title to the property or to deliver what he sold.”

The answer to, this contention is that the law is plain and makes no exceptions. It applies to all cases where real property is sold by sheriffs and constables. An adjudicatee at such sales may for valid rea-' sops refuse to accept the property tendered, but it does not lie- within his power to prevent a readvertisement and a resale of the property after thirty ■ days from the first sale, where he failed to comply with the terms of sale by paying the entire amount in cash. An adjudicatee’s failure to comply gives any person who is interested in having the property sold the absolute right to demand that it be readvertised for sale and when such demand is made, as was done in this case, it is made the mandatory duty of the sheriff or constable to proceed.

The act further provides in plain terms that the second sale “shall be at the risk and for the account of the former purchaser, and should there be any loss by reason of said second sale the first purchaser shall be liable therefor:” Section 3.

It is suggested that this provision of the act might inflict hardship and injustice upon an adjudicatee. We do not think so. If the property at. the second offering bring a price equal to or in excess of that bid at the first offering, the first adjudicatee would suffer no loss. If 'it bring less, he would be liable for the loss, provided he had no good and valid reason for refusing to comply with his bid. It would not be unjust to require an adjudicatee to pay such loss if his reasons for refusing to accept the property and go on with the sale were not well founded. On the other hand, if his reasons were well founded, lie would not be compelled to comply with the terms of the adjudication.

In the present case, if the property should bring less at the second sale, and if tjien an action be brought against Mrs. Passera for the loss, proof of the allegations which she makes in the present suit for injunction would be a perfect defense to such action. But; she cannot be permitted to hold up the sale of the property until her objections are finally passed upon by the courts. A holding that she has such right would be in direct conflict with the plain letter of tyie law.

We think, however, that her right to urge all such defenses as she may have in case an action should be brought against her for any loss on account of a second sale, as well as her rights, if- any she has, to hold the seizing creditor liable in damages for such loss as she may sustain on account of its failure to deliver the property, should be fully reserved.

For the reasons assigned it is therefore ordered and decreed that; the judgment appealed from be reversed; that the preliminary injunction issued herein he dissolved and set aside; and that plaintiff’s suit be dismissed at her cost in both courts, with full reservation of all of her rights as above set forth.

O’NIELL, O. J.

(dissenting).

The temporary injunction which was granted in this case, and from the granting of which the defendant has appealed, merely forbids the sheriff to advertise ,or sell the property at the risk and for the account of Mrs. Victor J. Passera, the plaintiff in the injunction suit, under the provisions of Act 316 of 1908. I concede that Mrs. Passera cannot compel the defendant, Pontchartrain Realty Company, to perfect the title to the property; if in fact it is .not perfect, or contains less area than the property advertised and offered for sale. But the writ of injunction merely forbids the sheriff to advertise or sell the property at Mrs. Passera’s risk and for her account until it can be determined by a' judicial decree whether her complaint is well founded. It is conceded in the prevailing opinion in this case tjiat, if Mrs. Passera’s complaint is well founded, the reselling of the property will not be, and cannot be, at her risk or for her account, notwithstanding the language of the statute. Then why should the sheriff be allowed to advertise the property for sale at the risk and for the account of Mrs. Passera? Why not let it be determined in this injunction suit whether Mrs. Passera’s complaint is or is not well founded? Why leave the question to be determined in another lawsuit between the same parties? In fact, there will be perhaps a third lawsuit if the property is adjudicated to some one else, who may make the same complaint that Mrs. Passera is making in this ease.

It is said in the prevailing opinion in this case that Mrs. Passera will not be deprived of any right if the property is reoffered for sale at her risk and for her account, and if it is sold to some one else at a price less than Mrs. Passera has already bid, and if it is eventually determined that the complaint which she is making in this case was well founded. But that is not correct, because, if Mrs. Passera’s complaint is well founded, she is entitled to have that fact judicially determined now, so as to be relieved of having the property resold at her risk and for her account, under the provisions of section 3 of Act 316 of 1908. On the other hand, if Mrs. Passera’s complaint; is not well founded, and if the property must be resold at her risk and for her account, she ought to have the privilege — which any subsequent bidder will have — of taking the title, notwithstanding her complaint.

I respectfully submit that there is a serious inconsistency in the prevailing opinion in this case. It is said, first, that the statute must be so literally construed that the property must be resold at the risk and for the account of Mrs. P'assera, notwithstanding her objection to the title may be well founded; and then it is said that, if, after the second sale, it is ascertained that Mrs. Passera’s complaint was well founded, the second sale will not have been at her risk or for her account.

I submit that section 3 of Act 316 of 1908 is entitled to a reasonable construction. When it says that, unless the price be paid within thirty days, i;he property shall be resold at the risk and for the account of the bidder, it means unless the bidder pays for what he bought. It does not mean that a bidder must,, under penalty of having the property resold at his risk and for his account, pay for and take whatever property the sheriff tenders him, regardless of any defect of title or deficiency in quantity of the property offered for sale.

Mr. Justice Brown, for the Supreme Court of the United States, struck the keynote, in Hawaii v. Mankichi, 190 U. S. 212, 23 S. Ct. 787, 788, 47 L. Ed. 1020, when he said that the books were full of decisions to the effect that the intention of the lawmaking power should prevail against the letter of the statute. Here is what was said in that case:

“But there is another question underlying this and all other rules for the interpretation of statutes, and that is, What was the intention of the legislative body? Without going back to the famous ease of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the law-making power will prevail, even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in Smyth v. Fiske, 23 Wall. 374, 380, 23 L. Ed. 47, 49: ‘A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.’ A parallel expression is found, in the opinion of Mr. Chief Justice Thompson of the supreme court of the state of New Tork (subsequently Mr. Justice Thompson of this court), in People v. Utica Ins. Co., 15 Johns, 358, 381, 8 Am. Dec. 243: ‘A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers.’

“Without going farther, numerous illustrations of this maxim are found in the reports of our own court. Nowhere is the doctrine more broadly stated than in United States v. Kirby, 7 Wall. 482, 19 L. Ed. 278, in which an act of Congress, providing that if ‘any person shall knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier,’ was held not to apply to a state officer who held a warrant of arrest against a carrier for murder, the court observing that no officer of the United States was placed by his position above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention when accused of felony. ‘All laws,’ said the court, ‘should receive a sensible construction^ General terms should •be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.’ A case was cited from Plowden, holding that; a statute which punished a prisoner as a felon who broke prison did not extend to a prisoner who broke out when the prison was on fire, ‘for he is not to be hanged because he would not stay to be burned.’ Similar language to that in Kirby’s Case was used in Carlisle v. United States, 16 Wall. 147, 153, 21 L. Ed. 426, 429.

“In Atkins v. Fibre Disintegrating Co., 18 Wall. 272, 21 L. Ed. 841, it was held that a suit in personam in admiralty was not a ‘civil suit’ within the 11th section of the judiciary act, though clearly a civil suit in the general sense of that phrase, and as used in other sections of the same act. See also Re Louisville Underwriters, 134 U. S. 488, 10 S. Ct. 587, 33 L. Ed. 991. So in Heydenfeldt v. Daney Gold & Silver Min. Co., 93 U. S. 634, 638, 23 L. Ed. 995, 996, it was said by Mr. Justice Davis: ‘If a literal interpretation of any part of it (a statute) would operate unjustly, or lead to absurd results, or be contrary to the evident meaning of the act taken as a whole, it should be rejected. There is no better way of discovering its true meaning, when expressions in it; are rendered ambiguous by their connection with other clauses, than by considering the necessity for it, and the causes which induced its enactment.’ To the same effect; are the Church of Holy Trinity v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226. * * *

“Two recent English cases are instructive in this connection: In Plumstead Dist. Bd. of Works v. Spackman, L. R. 13 Q. B. Div. 878, 887, it was said’by the Master of Rolls, afterwards Lord Esher: ‘If there are no means of avoiding such an interpretation of the statute’ (as will amount to a great hardship), ‘a judge must come to the conclusion that the legislature by inadvertence has committed an act of legislative injustice; but, to my mind a judge ought to struggle with all the intellect that he has, and with all the vigor of mind that he has, against such an interpretation of an act of Parliament; and, unless he is forced to come to a contrary conclusion, he ought to assume that it is impossible that the legislature could have so intended.’ See also Ex parte Walton, L. R. 17 Ch. Div. 746.”

For these reasons, I respectfully dissent from the prevailing opinion in this case.  