
    Zacharie v. Winter.
    Where the judgment creditor purchases in the property of his debtor at sheriff’s sale, and recontcjs it to him on certain terms and conditions; from the moment of the adjudication it is an ex-tinguishment of the judgment for the pi'iae bid. on the property; and no new execution can issue on the judgment without notice, and contradictorily with the judgment debtor.
    A subsequent mortgagee of property sold at sheriffs sale who made a private arrangement with the purchaser, who was the seizing creditor, was an incompetent appraiser. A fraudulent appraisement is, as if none had been made.
    A sheriff’s sale of immovable property must be made at the seat of justice for the parish where tho seizure is made; unless in tho country, and tho debtor requires it to be made on the plantation, which fact must bo stated in the advertisement. — C. P. 664, 665.
    Appeal from the court of the second district, for the parish of Ascension, tho judge of the fourth district presiding.
    This case comes before the court on an opposition to a monition taken out by the plaintiff to have a sheriff’s sale made to him homologated and confirmed.
    Tho defendant confessed judgment, on the 14th October, 1887, on an account for advances, commissions and supplies furnished, by the firm of J. W. Zacharie & Oo., for $14,927, with ten per cent, interest per annum; eleven thousand dollars of which was secured by mortgage. Execution was stayed for one half until March, 1839; and on the balance until March, 1840. The first half of said judgment not having been paid at the expiration of the delay given, execution issued on the 5th April, 1839, for this half and the sugar plantation of the defendant adjoining the town of Donaldsonville, containing 800 superficial arpents, together with 47 slaves, were seized. The sheriff returned that after having complied with the legal formalities, and after advertising the property by advertisements at the church and court house doors, and in the newspaper published in Donaldsonville, on the 6th June he proceeded to the plantation of the de[77] fendant where the sale was advertised to take place, and adjudicated the property to the present plaintiff, J. W. Zacharie, for the price of $40,050 as the highest and last bidder; but the amount of the adjudication was not paid in consequence of an agreement the day after the sale was passed, between the parties, plaintiff and defendant in the execution, in which they declared the sale was null and void, and all the proceedings under the execution were by them held as though they had never taken place. “The deed of sale was made out in due form by the sheriff to the purchaser on the 8th,” and recorded the 9th June. All this is stated in the sheriff’s amended return of the 27th May, 1840.
    On tho 27th January, 1840, a second execution issued on this judgment for the whole amount, and the sheriff seized the plantation and slaves of the defendant, and all the stock thereon, and advertised them in the newspaper, and by advertisements posted up at the court house and church doors of the parish fijr 30 days. Upon the day of the sale the defendant was duly notified and failed to appoint an appraiser. The sheriff appointed Manuel Euentes and the plaintiff J. „V. Oresap, who were sworn and made the appraisement. The sheriff then proceeded to sell the entire property seized, in block, and it was adjudicated to J. W. Zacharie as the last and highest bider for $32,250 on the 6th March; the purchaser retaining $9,261 for the payment of his debt, and the balance after paying costs of sale, &c. was to be applied to the payment of the mortgage debts due by the defendant and existing on the property.
    Zacharie took out a monition under the Act of 1834 to perfect the sheriff’s sale to him, to which the defendant made opposition on various grounds.
    1. That the judgment on which the second execution issued was satisfied by the first sale.
    
      2. The execution issued for the whole amount of the judgment when only half of it was executory.
    3. That the land, slaves, &c. were not legally advertised in the man- [78] ner and for the length of time required by law.
    4. There was no legal and proper appraisement; and by the illegal acts of the sheriff and of the plaintiff, the property was falsely and fraudulently appraised at not more than half its value.
    5. The sale was not made at the seat of justice of the parish as the law requires.
    The opponent avers that the plaintiff was well acquainted with all the nullities of the sale when the property was delivered to him, by reason of which and of all the defects and nullities set forth the said sale should he annulled and the said Zacharie ordered to deliver up the property to him.
    It appeared by the evidence that Oresap one of the appraisers, had a judgment and mortgage against Winter at the time of this sale for $5,568, and that he had an understanding and an arrangement with Zacharie that ha should buy in the plantation and slaves and they would both take them into possession and conduct it; that two other appraisers declined acting because the negroes and part of the property was not shown to them.
    There was judgment dismissing the application for a monition; rescinding and annulling the sale and ordering Zacharie to deliver up the property to Winter. The former appealed.
    
      Ilsley and Nicholls, for the plaintiff,
    insisted on the reversal of the judgment •, that the monition law only extended to mere defects in the manner of making the sale. The formalities required by law were pursued by the sheriff and the sale should be maintained.
    
      Miles Tayloi\ for the defendant,
    urged the nullity of the sale on the grounds stated in the opposition, and cited various authorities in support thereof.
    
      Eustis for the plaintiff in conclusion. [79]
   BuLUARn, J.

delivered the opinion of the court.

This is air appeal from the judgment sustaining the opposition of Winter to the homologation of a sheriff’s sale of his plantation and salves made under color of a writ offieri faaias issued on a judgment recovered by Zacharie & Co. against him. The facts necessary for our present purpose, are, that Zacharie & Co. recovered a judgment against Winter upon which an execution issued and the plantation and slaves were sold and were purchased by J. W. Zacharie the present appellee. The parties afterwards entered into an agreement before a notary, by which it was stipulated, after reciting the previous judgment, execution and sheriff’s sale, that for and in consideration of two thousand six hundred dollars to be paid by Winter, Zacharie renounces and abandons to said Winter all the right, title and interest which he had acquired and transfers the same to him, that he may use and enjoy the same as if no adjudication had taken place. In consideration of the said renunciation, it was further agreed that the judgment by virtue of which the said sale had been made should be reinstated and considered as binding and valid as if no sale had been made by virtue of an execution which issued under it. The terms of payment of the debt for which the judgment had been rendered were extended for one half until January, 1840, and the balance until 1841, until which periods no execution should issue. To secure the payment of the sum of $2,600, the same property is mortgaged by the act, and it was made payable in January, 1842.

When the first instalment fell due a fieri facias was issued upon the original judgment for the full amount but was stayed as to one half, and the plantation and slaves were again seized and finally adjudicated again to Zacharie, who procured a monition from the district court in pursuance of [80] the Act of 1834, calling on all persons to show cause why the sheriff's sale should not be homologated, as Winter filed his opposition upon the following grounds:

1st. That the judgment in the suit of Zacharie & Co. v. Winter was satisfied by a sale made by the sheriff, on or about the 6th of June, 1839, in virtue of an execution issued thereon, and that consequently there was no judgment then in force upon which the execution could legally issue in virtue of which this pretended sale was made.

2d. The execution was illegally issued for the sum of $14,927 67, whereas in truth the plaintiff was only entitled, if to any at all, to an execution for one half of said sum.

3d. That the sale was not legally advertised in the manner and at the place provided by law.

4th. The sale was not advertised for the length of time required by law.

5th. That a just and true appraisement of the property was not made according to law before the sale, and that by the illegal acts of the sheriff or his deputy, and the illegal practices of said Zacharie the same was falsely and fraudulently appraised at not more than half its just value.

0th. That the sale was not made at the seat of justice of the parish as the law required.

The district court sustained the opposition on the first, second, fifth and sixth grounds and annulled the sheriff’s sale, and the plaintiff appealed.

I. On the first ground it appears to us, that the contract before the notary amounted to a retrocession of the property to Winter. The parties admit the adjudication under a former writ of fieri facias and consequently that the property had vested in Zacharie the purchaser. The right thus acquired was renounced, and the property transferred to Winter for a new and distinct consideration, to wit, the sum of $2600, and the renewal of the former debt. Like every other contract it was liable to be questioned and its legal validity to be inquired into by the parties. Suppose that in the in- [81] terval between the first adjudication and the retrocession judgments against Zacharie had been recorded in the mortgage office of the parish in which the property is situated, it seems to us clear they would have attached to the property, and might have furnished good grounds against the execution of the contract, and consequently, the judgment which it purports to reverse might be subject to be modified by a court of ordinary jurisdiction. Again the whole contract must be taken together as an entire thing, and if an ordinary fieri facias could properly issue for a part without any further judicial action, it is not so obvious why it could not for the whole, including the $2,600, for which no judgment has ever heen rendered. But it is contended, that Zacharie’s judgment was not satisfied by the sheriff’s sale which remained incomplete, the price not having been paid. The moment the parties admit that there was adjudication, they necessarily admit, that if the judgment creditor became the purchaser the price bid by him is offset against the judgment, and consequently amounts to an extinguishment of it pro tcmto, at least as to third persons. We are of opinion that a writ of fieri facias ought not to be issued without some notice to the appellee in the nature of a scire facias, and giving him an opportunity to contest the same.

II. The opinion already expressed upon the first ground of opposition renders it unnecessary to inquire whether the fieri facias issued for too much.

V. We are satisfied that this ground of opposition was properly sustained. It is evident that one of the appraisers being a subsequent mortgagee of the same property, and having made a private arrangement with Zacharie was not an impartial appraiser. But we do not concur with the district court in opinion that the allegation, that the appraisement was a fraudulent one, ought to be struck out. If the appraisement- was fraudulent, it was [82] as if none had been made, which would clearly be a sufficient ground of opposition.

VI. The last ground is well taken and. clearly sustained by the evidence. Articles 664 and 665 of the Code of Practice declares that sheriff’s sales shall he made at the seat of justice for the parish where the seizure is made, at the spot where it may have the greatest degree of publicity; but that in the country the sale may be made on the plantations which are to be sold if the debtor requires it, but in that case notice must be given of the fact in the advertisement of sale. In the present case the sale was made on the plantation not only without the consent, but contrary to the will of the debtor.

It is therefore adjudged and decreed, that the judgment of the district court be affirmed, with costs.  