
    No. 29.
    Tarleton, Whiting & Tullis v. James A. Kennedy. Rule on Mrs. M. E. Thompson et al.
    A party cannot claim the nullity oí a judicial sale and tlio fruits of the sale in one and the same action. 2 An. 681; 8 An. 454.
    A peremptory exception may be pleaded as well after default as before.
    from Eleventh District Court, parish of Jackson. Watldns, J.
    
      Kidd <& Smith, for plaintiffs and appellants. B. W. & B. Bich-ardson, II. Gray and Ilamlett & Stevens, for defendant and appellee.
   Wyly, J.

An execution in favor of plaintiffs, issued on the twelve months’ bond of the defendant, Kennedy, and D. R. Thompson, his surety, and the land of the latter was seized and sold by the sheriff on sixth October, 1866, to Mrs. M. E. Thompson for the price cf fifty dollars over and above all the mortgages mentioned in the mortgage certificate made out by the Recorder of the parish of Jackson. Tho property was adjudicated to tho purchaser, who paid over the fifty dollars, and retained the balance of the price hid to satisfy said mortgages. The plaintiffs now sue the sheriff and Mrs. Thompson to compel the former to correct his return, and the latter to pay over in full the amount of her hid or enough thereof to satisfy their judgment, or in default thereof to recover judgment against her for the balance due on their execution, alleging that the mortgages on the certificate were for the most part paid or prescribed, or wore not all conventional mortgages j that if it be found that said conventional mortgages be not out of date or prescribed, hut properly, on the mortgage certificate, then the judicial motgages at least did not authorize the purchaser to retain a part of the price to satisfy them.

The defendant, M. E. Thompson filed a peremptory exception, on the ground that the petition discloses no cause of action against her, and because the plaintiffs do not show that they have sufficient inter-cst in the sale to authorize the court to ^vant the judgment they aslc. Plaintiffs thereupon moved that the exception of the defendant he taken for an answer because made after default had been entered. The court overruling the motion maintained the exception of the defendant. From th,e judgment dismissing their demand the plaintiffs have appealed. .

The question raised by the pleadings, is, have the plaintiffs shown a sufficient, cause of actjo.n against the. defendant, Mrs.. Thompson? They claim the fruits of the sale,, and yet s_gt¡ up such illegalities as would vitiate the sale. If- Mig. Thompson has not complied with her hid, unlawfully detaining the price to satisfy mortgages that have no actual existence, the sale might he annulled-, If the mortgages have been paid or prescribed, such should be pleaded specially, and with certainty in an action contradictorily with the mortgage creditors.

Without testing the rights of the mortgage creditors by a direct action, they cannot., proceed agaipsfc MTib Thompson. She hid fifty dollars over and abipye the. mortgages existing on thq property as shown by the mortgage certificate. Tq require, her to pay over the full- amount of the price would pat release, her from the privilege and conventional, mortgage, qredijlprs., and would, in effect, he requiring her to do what was. fio,t .embraced in her.bid. She only agreed to pay fifty dollars and. the. mortgages. If this, was- an illegal- bid because there were, judicial mortgages, for- the payment of which the price could not he detained, the sale might he annulled; hut having claimed its fruits th.e plaintiffs are bound, by its terms. 2 A. 634; 3 A- 454.

Plaintiffs urge in their hill of exception that the peremptory exception filed after the default mu.st he taken as an answer, citing- as authority Stilley v. Stilley, and Lea v. Terry, 20 A. 428. They are not in point. A peremptory exception can. be. pleaded as well after default as before. But whether tfii} peremptory exception be.regarded as an answer or exception, canqof change thp result,

It is therefere. ordered tha$ the, judgment appealod from he affirmed with costs.  