
    Heirs of Bastable v. Thomas Curry et al.
    The 30th section of the insolvent law of 1808 requires that the syndic must present a petition for an order of sale before selling the insolvent’s property; but tvhere the sale has been made, the non-exhibition of an order of sale does not invalidate the purchaser’s title.
    Where a person having a mere equitable claim to lands permits another to sue the United States for them, and recover judgment, and the lands are sold under an execution against the person having thus acquired a judgment, the original claimant is estopped from reco’ vering the lands from the bona Ji.de purchaser at the sale.
    Where one sells any right, title, or interest he may have in a claim of certain lands against the United States, without any warranty against third persons, the claim not being recognized by the United States, there is no law requiring the registration of such a conveyance in the office of register of conveyances in the parish where the land is situated. The land office of the United States for the district is the office in which such a claim should be filed or registered.
    Judicial proceedings carry with them notice, and an assignment iriade in court to the syndic has the same effect as if recorded in the parish where the land is situated; there being no law requiring such assignments tobe recorded.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    
      T. G. Morgan, for plaintiff,
    in reply to argument of defendants’ counsel contended : 1. The first point made by the plaintiffs is,- the voluntary surrender by Bringier of the order of court thereon, and the assignment by him made vested the title to the property in the creditors. 5 M. R. 648. 2d. The surrender so made, being a judicial proceeding, was notice to the world. 4 M. R. 451. 7 M. R. 409. 9 M. R. 325. 3 Átk. 343. 2 P. Williams 282. But it is argued by defendants that the authorities cited by plaintiffs only go to show that insolvent proceedings are judicial proceedings; but there is not to be found an intimation that the whole world is bound by all judicial proceedings, in every case. Again they say, that, in truth the cessio bonorum is nothing more than a contract between the debtor and his creditors, although generally conducted according to certain formalities, under the sanction of a court, of justice.
    To test the correctness of this latter position, we will refer more particularly to the authorities cited in our original brief.
    In the case of Dupau's Syndics v. Brideaux, 4 M. R. 451, the court holds the following language: “We incline to think that the acts of creditors convened by a court of justice are part of the judicial proceedings, the whole course of which forms what is known to the Spanish laws by the name of juicio de concurso,” &e.
    
      Davenport v. Segher's Syndics, 7 M. R. 409 : “The proceedings of the meeting of the creditors of an insolvent are judicial proceedings. They are ordered by the court, and constitute a part of the proceedings in the suit instituted by the debtor against his creditors, and are the basis on which rests the judgment which terminates it. They, therefore, are a part of those written proceedings which are required to be promulgated, preserved and conducted in the language in which the Constitution of the United States is written.”
    The same rule was recognized in the case of Viale’s Syndics v. Gardenier et al., 9 M. R. 324, and Maxent v. Maxent et al., 1 L. R. 438. In the latter case separate and elaborate opinions were delivered, but ail concurred in recognizing the soundness of the rule laid down in the case of Durnford v. Segher's Syndics. Resting, then, on these repeated decisions, We submit that we were correct in saying that the surrender is a judicial proceeding. Was this judicial proceeding notice to the world ? Mackelday states the rule thus : “By means of the lilis contestatio the suit came to be pending lis pendens ; and to this very important consequences were attached, of which, especially, the following are retained in the modern Roman law: Every kind of preemption becomes thereby interrupted: the limitation of actions as well as the usucaptio on the part of the defendant. The object of the suit becomes thereby a res litigiosa, so that the plaintiff is no longer enlitled to transfer hisclaim to another, nor is the defendant either to alienate or make a change in the thing for the recovery of which the action is brought against him.” “From the time the suit is contested, every possessor, though he may have been previously a bona fide tenant, is treated as a possessor malee fide, with respect to the omnis causa which is to be vested together with the thing.” Mackelday, p. 204, 205. 206, sec. 203, English translation.
    Every man is presumed to be attentive to what passes in the courts of justice of the State or sovreignty where he resides. And, therefore, a purchase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice, in point of fact, affects the purchaser in the same manner as if he had such notice; and he will accordingly be bound by the judgment or decree in the suit. 1 Story on Equity, sec. 405, cites Com. Dig. Chancery, 463, 464; 2 Fonbl. Eq., b. 2, ch. 6, sec. 3 note (n.;) Sorrell v. Carpenter, 2 P. Will. 482; Worsley v. Earl of Scarborough, 3 Atk. 392; Bishop of Winchester v. Paine, 11 Yes. 194; Garth v. Ward, 2 Atk. 175; Mead v. Lord Orrery, 3 Atk. 242; Gaslceld v. Burdin, 2 B. & Beatt 169; Moore v. Macnamara, 2 B. & Beatt 186 ; Murray v. Ballou, 1 John. Ch. Rep. 566.
    It is a general rule, that lis pendent is a general notice of an equity to all the world. Bouv’s Law Die., verbo lis pendens, cites : 3 Atk. 343 ; 2 P. Will. 282; Amb. 676; 1 Ver. 286; 2 Fonbl. Eq. 152, (note;) 1 Sup. to Ves. Jr., 284; 3 Rawle’s Rep. 14; Pow. Mort., ind. h — t.
    These authorities, we .submit, sustain the position originally assumed: that the cessio bonorum is essentially a judicial proceeding, and as such notice to the world.
    But the learned counsel of defendants seems to intimate that the doctrine of lis pendente only has effect pendente lile. The numerous authorities to which we have referred do not sustain such doctrine. Indeed, it would seem to be a contradiction in effect, if not in terms, to say, that while all the world is px-esumed to know that a suit is pending, and that all are bound to know the object of such suit, that the moment judgment is rendered it' ceases to have effect; and this more especially when the codes and statutes of this State may be searched in vain for rule directing the proceedings and judgments of the courts of this State to be recorded elsewhere than on the records of the court, except in the solitary case where the party desires his judgment to have the effect of a mortgage. The Code of Practice, art. 163, provides, that ixx actions of revendication, &c., the defendant may be cited either within the jurisdiction where the property revendicated is situated, though he has his domicil out of that jurisdiction, or in that where the defendant has his domicil, as the plaintiff chooses.
    Suit for land may be brought at the domicil of the possessor, although the land' be situated in a different pax-ish. Blanchard v. Ternant, 4 N. S. 188. The registry laws do not require the judgment of eviction to be recorded in the parish where the land is situated.
    But suppose the rule to be as stated ; then the question would arise, where is a suit for surrender terminated 1 We submit, that it is commenced by the petition of the insolvent pi-aying to be permitted to make a cessio bonorum; and tex'minates only when Bind judgment has been pronounced on the tableau of distribution. If this be true, as we confidently affirm it to be, then the suit of Louis Bringier v. His Creditors is now pending, and undecided. No tableau of distribution has been filed; no final judgment rendered.
    3¿. The title of Bringier to the property by him surrendered being vested in his creditors, he could make no valid sale thereof. The sale of a thing belonging to another is void. L. C. 2427. Poth. Contract of Sale, No. 526. 11 L. R. 345. 3 M. R. 385. Nemo plus juris ad alium transferre potest quamipse haberent. D. 50, 17, 54.
    We trust we have cleax-Iy shown the divestiture of the title of Bringier, by his surrender and assignment to the sheriff in trust for his creditors; and that the title of Bringier, such as it was, vested in Lambert Bastable and Brothers, by the sale made by the assignee; and, consequently, that the subsequent sale by Bringier to Garland and Curry vested no title whatever in them. Under what title, then, does Stacy, the vendee of Garland, and Curry hold the remaining two-thirds of the land ? We say they have none other than the sale under which we claim, and the compromise between them and the heirs of' Mooney, they, the heirs of Mooney, having acquired the title of Brothers and Lambert; and holding under this title, they cannot be permitted to attack it.
    
      But, say the learned counsel, they in making this compromise only bought their peace. We admit that when a party holding under a title defective in form, enters into a compromise with an adverse claimant, or where he seeks bona fide to get rid of a vexatious litigation, such transaction will not prejudice his rights. But such is not the present case. The pretended sale from Bringier to Garland and Curry is not defective in form. Neither is it defective in substance, had Bringier been at the time the owner of the thing sold, and had there been no surrender made by him the title would have been conclusive against the world. It is, as we have seen, null and void, and conveyed no title whatever, and according to the authority cited from Mackelday the defendants are possessors malts fide. They were so as to all the purchasers ; they are now so as to the present plaintiff. And as their only shield is the title acquired by the compromise, they cannot be permitted at one moment to protect themselves with it, and the next treat it as a nullity.
    Inasmuch as his honor Judge Preston was not on the bench when this case was argued in December last, we consider it ne essary to call the attention of the court now to the following paragraph in the defendants’ brief. “The plaintiffs’ counsel, when he asserted in his brief that no part of the original record can be found, and we are obliged to depend upon an imperfect copy, appears to have forgotten what we assert actually took place at the trial below, to wit, that the original record was produced by the clerk, examined by the judge, and collated with the copy now in the transcript, which was found perfect and complete, and the statement of evidence shows that the record itself was produced, and not merely the transcript, or copy.”
    This statement was admitted by the learned counsel for defendants to be erroneous; the fact being as stated, “that no part of the original record can be found.”
    
      Stockton and Steele, for intervenors,
    contended: 1st. That the creditors of Bringier were bound to record the title which they acquired by his surrender, in like manner as any other conveyance or alienation must be recorded in order to affect third persons. 2d. That the ancestor of the plaintiffs never acquired any title from the creditors of L. Bringier, because Morgan, the sheriff, had no authority to sell. 3d. That, if any title was acquired by the ancestor of plaintiffs, it should have been duly recorded in Concordia, in order to have any effect against third persons.
    It is, perhaps, unnecessary to refer to the several registry laws; but it suffices to say, that they require all conveyances and alienations to be recorded, &c. Old Code, p. 294, art. 171. L. C. 2171. 2d section of act of 29th March, 1826, in B. & C. Dig. 945. Act of 26th March, 1813, B. & C. Dig. 596.
    Now, in the case of Smally’s surrender, 2d Ann. 228, the court says, that a voluntary surrender is an alienation. This case is very important on this point, as it establishes, that an alienation by surrender is not to be distinguished from an alienation by any other method. It may be asked, how can such an alienation be recorded ? We answer, that the petition of the ceding debtor to be allowed to surrender, &c., and the acceptance by the judge are the conveyance; and, if recorded, they would be notice of the transfer.
    The doctrine of lis pendens being notice to all the world, does not obtain in Louisiana.
    In England there are but four law courts for the whole kingdom, all of which hold their sessions in Westminter; and there it is easy to consult the docket; but in Louisiana there is an independent district court of original jurisdiction in each and eveiy parish; and consequently here a similar rule would be unreasonable.
    The farthest extent to which our courts have gone is, that, in cases of suits for the recovery of immovables, the pending of the suit is so far made notice, that any conveyance made by defendant after the commencement of suit will not be noticed, and the suit progresses as if it had not been made. This is only a necessary rule of practice, without which no suit, in such cases, could ever be successfully prosecuted. But even in England the doctrine of Us pendens being notice, is confined to the courts of law ; and in chancery, even a decree is notice only to the parties thereto. I Story’s Equity Jurisprudence, sec. 405.
    But even if lis pendens were notice, there could be no reason for its application in this case; because the surrender of Bringier to his creditors did not amount to lis pendens; there was no suit. There is no defendant in a voluntary surrender out of the property, but only as to the discharge of the debtor from imprisonment, which is a collateral issue ; and in case no appearance is made by the creditors, no issue can be formed by a judgment by default, they are not required to do any thing, in default of doing which, such judgment can be rendered against them.
    A plaintiff and a defendant are necessary to constitute a suit. Further, there must be an issue, in order to forma suit, and without one, either expressed or implied, there is no suit, no lis pendens. A thing is not litigious until there is a contestatio litis.
    
    The surrender is a mere mode of conveyance. The debtor is desirous of securing to all his creditors the benefit of all his property, and he takes the necessary steps to effect this object. In other States of the Union he may convey to trustees; but in Louisiana he must convey to all his creditors, which is done by petition to a competent court to be allowed to surrender, and the acceptance of the surrender by the judge.
    Again, in the present case there was a direct assignment eo nomine ; and only in consideration of this direct and express conveyance or assignment by Bringier was he discharged from imprisonment by the court. This might have been easily recorded; and we humbly submit, that, in default.of such recording, it is of no avail as against third persons.
    The assignment made by Bringier is in these words : “I, P. L. Bringier, do hereby assign and transfer to the sheriff of the parish of New Orleans, in trust for the security of my creditors, the whole of my property as described in my schedule.” P. L. Bringier.”
    On the second point we will not make any remark, as it perhaps cannot be elucidated by reasoning.
    As to the third point we will simply refer to the case of Baramon and Lee, 3 R. R. 160, which was a case of a deed made by the sheriff, &c. "We think that case, and the act of 1813, in reference to recording sheriffs’ deeds, &c., fully cover the present controversy. Act of 26th March, 1813, B. & C. Dig. p. 596, sec. 1.
    We will here leave the plaintiff, and turn our attention to the defendant Stacy, whose pretensions to have succeeded to the interest of Rice Garland in said lands, we deem equally unfounded.
    The principal informality in the sheriff’s sale, on which we rely as an objection, and which we deem fatal to his title, is the want of any notice of seizure to the debtor, R. Garland.
    
    Though some argument was made at the bar in the district court, as to the burthen of proof in regard to the observance or non-observance of the formalities required bylaw in effecting the sale under which Stacy claims ; yet, in fact, no such question arises in this case; because the facts, as to the notice, are either established or insisted on by Stacy himself. He does not insist that Garland was served personally with the notice, but only by and through a service on Curry as his agent.
    In the first place, we do not deem that the service on Curry is established; but, if it were established, then we hold that, he never had any such power of attorney as was necessary to enable him to represent. Garland in any judicial proceeding whatever; and for this we rely on the case of Seymour v. Cooly, 9 L. R. 78, and Fuselier v. Robin, 4th Ann. 61.
    But we hold that, if Curry ever had any such authority, that is an authority to represent R. Garland in judicial proceedings, it was revoked by the power of attorney from R. Garland to Win. C. Plamner and Wm. H. Garland, dated 15th January, 1846, and accepted and acted on by said attorneys, to the knowledge of Curry, in June, 1846, as evidenced by the act of compromise between Curry and Garland, and the heirs of Mooney, at that date. C. C. 2999. This point is too plain for elucidation, and therefore we simply state it.
    It appears, then, that even if Curry was served with notice of seizure, he was not the authorized attorney of Garland to receive such notice ; and consequently, no notice of the seizure was ever given to Garland. A curator ad hoc to receive such notice should have been appointed, if he had no attorney in the State capable of receiving it.
    But he did have such an attorney in Hamner and Wm. p[. Garland, each of whom resided in New Orleans at the time, and who were known to Curry as his attorneys duly authorized for such a purpose. Enquiry of Curry would certainly have resulted in information of the fact. The notice should have been served on one or both of them. It is, then, fully established, that no notice of seizure was legally served on Rice Garland.
    
    
      The result of this defect, is, according to the uniform course of decision in this State from the commencement of its judicial history up to the present time, fatal to the pretensions set up by Stacy under the sale made by the sheriff of Concordia.
    All formalities required by law must be complied with in order to effect a forced alienation. 11 M. R. 610, 675. 7 N. S. 185. 8 N. S. 246. 2 L. R. 328. 3 L. R. 421. 4 L. R. 150, 207. 9 L. R. 123. 16 L. R. 556. 6 R. R. 74. 8 R. R. 152. 9 R. R. 69. 1st Ann. 297.
    Three day’s notice is required to be after seizure and before advertising, whether in case of fi. fa. or an order of seizure ; otherwise the sale is void and transfers no right in the property to the purchaser. C. P. 654, 655, 667. 6 L. R. 631. 11 R. R. 54.
    On Monday, the 19th February, 1849, this court, in the case of Dorsey v. Hills etal., decided that a petition setting up defects in a sheriff’s sale, should state all the defects relied on, and that no proof could be given at the trial as to any other l han the defects so set out and relied on in said petition. The court refers to Landry v. L’Eglise, 3 L. R. 219.
    We take it, then, that the doctrine of the courts in this State, as to the observance of formalities required by law, has not been changed or overruled; nor is it likely to be. We have particularized, in the petitions of intervention, the defects in the sheriff’s sale; and Stacy has proved their existence by endeavoring to show that they do not exist.
    The counsel of Stacy introduced in argument, in the district court, an authority from the Supreme Court of the United States going to show, that that court holds, the irregularities in sheriffs’ sales do not effect the purchaser, &c. We are well aware that such has ever been the uniform doctrine of that court up to the session of the court held in the winter of 1847, 1848, when, in the case of L. A. Collier v. Josiah Stansbrough, 6 Howard. U. S. S. R. 14, it was held, that the want of appraisement in a marshal’s sale, under execution issued from the Circuit Court of the United States for the District of Louisiana, was fatal to the purchaser. This we think, settles the question as to the effect of the informality, &c.
    
      H. A. Bullard, for defendants,
    contended : On the merits between the plaintiffs and the defendants, the case involves an inquiry, 1st, into the construction of the laws relating to the surrender of property for the benefit of creditors by insolvent debtors, particularly of the act of 1808, for the relief of debtors in actual custody; and, 2d, into the policy, construction, and application of the registry laws.
    I. The legal title to property assigned or suirendered under the insolvent act of 1808 and 1817, did not vest in the creditors. The best exposition of those laws (because it is a legislative one,) is found in the Louisiana Code. Article 2171 declares, that “ the surrender does not give the property to his creditors, it only gives them the right of selling it for their benefit, and receiving the income of it till sold.” 2178: “The creditors can never prescribe by any lapse of time, so as to gain a property in the estate ceded.” 2180: “All sales of property ceded to creditors, must be made at the same terms and under the same formalities that property seized on execution is sold, but the sale is made ííy the syndic, or some person authorized by them, at auction.”
    The act of 1826 introduced a new rule, but only in reference to a surrender made by a debtor not in actual custody, and it requires the judge to whom the insolvent’s petition is presented, to endorse upon the schedule, “ that the cession of all the property of the insolvent is accepted for the benefit of his creditors;” and the second section of the act declares that from and after such cession and acceptance, all the property shall be fully vested in the creditors. B. & C.’s Dig, 495.
    In the case of Bringier v. His Creditors, not only was the proceeding had with direct reference to the act of 1808, the debtor being actually imprisoned, but there never was any acceptance by the judge or the creditors ; and the only judgment rendered was, that the debtor, having assigned his property intrust for the benefit of his creditors, should be released from imprisonment. And here, so far as the record shows, all proceedings ended.
    The idea that the legal title vested in the sheriff as trustee, for the benefit of the creditors as cestui que trust, and that, as trustee, he had a right to sell and could confer a legal title, is repugnant to the provisions of the code above recited, which declares that the title is still in the ceding debtor.
    
      It is also inconsistent with all the acts of Morgan, who signs his deed as syndic, and never was anything more than syndic of the creditors, or their agent for the administration of the effects surrendered according to law. Now it is clear, that a syndic has no authority to aeUproprio moiu; he must have the consent of his constituents, .the creditors, and an order of court; and he must pursue the formalities required for the validity of a sheriff’s sale under execution. All this is wanting in the present case. The creditors never met; there is no evidence that they were ever notified to meet at any time ; there is no order given by the court authorizing the sale.
    It is intimated in the plaintiff’s brief that such order is to be presumed, because it is recited in the syndic’s deed. This presumption might have some weight if it had not been shown by the production of the original record, as well as the minutes of the court, that there is no trace of any such application by the syndic or the creditors, or of any such order to sell; nor was any attempt made to show any mutilation of the record which exists in the same court which tried this case. The record, then, which is the highest evidence known to the law, contradicts the recital of the syndic in his deed. But it is not even pretended, that there was any appraisement of the property, which is, certainly, one of the formalities required by law for a valid sale by the sheriff under execution. We confidently ask the court, then, whether, in the absence of any consent on the part of the creditors, in the absence of any judicial authority, and without any appraisement, a loose, irregular, unauthorized sale by the syndic at auction can be regarded as having vested in the pux-chasers the legal title to the property-in contx-oversy, as against Bringier, or those who hold under him. He had, surely, such an interest as authorized him to require that his creditors, in the disposition of the property ceded, should act according to law, for the common benefit of the debtor and his creditors. He had, especially, a 1'ight to require that all the formalities of law should bo complied with. But not only all these formalities were neglected, and the land sold for a little over $100, but the pui-chasers never exercised any acts of ownership under their purchase, never took possession, or recorded the title deed, until December 21st, 1846, after the confirmation of the title by the District Court of the United States, at the suit of Curry and Garland, and neai-ly five years after the registry of the sale from Bringier to them.
    The case cited by the plaintiff’s counsel from the 1 R. R. 384, sustains many of the positions which we have assumed. The court said, that the insolvent who has surrendered his property to his creditors, is interested that the estate should be legally disposed of, though it is added that this is not a real interest in any part of the property coded, and that the debtor cannot interfere after the px-oceedings in insolvency are closed. It may be remarked, that in that case, the surrender was made and accepted under the act of 1826; and that all proceedings had been closed by a tableau of distribution, and that an attempt was made to defeat a title acquired under those px-oceedings. But in Bringier’s case, the assignment took place under a different law, never was accepted by the judge, or assented to by the creditors, and that the px-oceedings are not yet closed. No account even of the pittance received from the purchasers of the land has ever been received, much less a tableau of distribution.
    The judge of the district court has fallen into a strange error. He assex-ts that Bringier was released from all his debts. The record contradicts this in express terms. The order or decree rendered was merely that he be discharged from imprisonment, and no other order could be rendered except upon the express consent of two thirds of the creditors, in number and amount. The record shows that none of the creditors appeared, and although it appears that' an order was given to notify them to attend, there is not the slightest evidence that any such notifications were ever given, and though the statute requires notifications to be published in two newspapei-s in French and Fngligh. The court is asked to presume the notice to the creditors; to presume their assent to the assignment; to presume that the court authoi-ized the sale by the syndic ; to px-esume that public notice was given by him of such a sale. The wliole title of the plaintiff rests upon those presumptions, most of which, if not all, are cleax-ly conti-adicted by the record. The plaintiff’s counsel, when he asserted in his brief that no part of the original record can be found, and we ax-e obliged to depend upon an imperfect copy, appears to have fox-gotten what we assert actually took place at the trial below, to wit: that the original record was produced by the clerk, and examined by the judge, and collated with the copy now in the transcript, which was found perfect and complete, and the statement of evidence shows that the record itself was produced, and not merely tho transcript or copy. We refer the court to the following authorities, some of which will be found to bear upon this point of the case : 4 M. R/450.- 5 M. R. 618. 1 N. S. 95. 6 N. S. 182. 6 M. R. 560. 7 N. S. 180, 425, 442. 6 L. R. 9. 2 R. R. 201, 539.
    2. Upon the subject of the registry laws, it is, perhaps, enough to say, that this court has already pronounced its opinion in at least two cases, and that it is in perfect harmony with all the decisions rendered by your predecessors. The first case is that of Tulane et al. v. Levinson, 2d Ann. 787, in which the court held, that a sale of land, to have any effect against third personsj must be recorded in the office of the parish judge of the parish in which the land is situated, and that it is not sufficient to have recorded it in the office of the recorder of mortgages. It was further said, that under our registry laws, notice is not equivalent to registry. Here was a sale by the true owner, by authentic act, recorded in the parish, but not in the proper office, which the court held, conferred no rights on the purchaser.
    The second case is, that of Tear el al. v. Williams et al., in the same volume, p. 868, 869. The same doctrine is adhered to, and reference is made to the case of Carraby v. JDesmare, 7 M. R., N. S., 662. In the case now before the court, the primitive title of Bringier is admitted ; indeed, both parties claim under him. He was the grantee, deriving his title from the sovereign, and consequently there was no necessity for its being registered. See Tear et al. v. Williams et al., ante. He was known to be the grantee of the Spanish Government, although his title had not been fully recognized by the United States. He sells to Curry and Garland, in 1841, who-immediately record then-deed in the proper office, and go into possession, Five or six years afterwards, the plaintiffs recorded a deed purporting to be a sale by the syndic of Bringier’s creditors. Now, if Bringier himself had sold to the plaintiffs, and they had kept the act in their pockets, never recorded it, never taken possession, nor exercised any act of ownership,- and he had afterwards sold to the defendants, by an act duly recorded, the last purchaser, under our registry laws, would hold the land.
    We are aware of only one exception-to this rule, and that is in cases of fraud and collusion; and we understand the cases of Splane v. Micheltree, and Gill v. Gill, turned upon those principles. Good faith is to be supposed to exist, unless the contrary is shown; and where the second purchaser or mortgage is in good faith, a previous sale or mortgage by his vendor, not registered, can- have no effect against him, either as conferring title or possession. And, so far has this court carried the' doctrine, that even when the attorney of the' party, who had transacted the business, knew the existence of the previous sale, and that it had been'registered in the wrong office, in the same village, the second sale was held to convey the title. See Tulane’s case, ante.
    The' act of 1813 requires even the sales made by sheriffs and other officers, to be recorded in the office of the parish judge of the parish in which- the land is situated, and it declares,- that all sureties, contracts, sales, judgments, sentences, or decrees aforesaid, and all liens of any nature whatever, having the effect of a legal mortgage, which shall not be recorded, agreeably to the provisions of this-act, shall be utterly nulí and void to all- intents and purposes, except between the parties thereto.
    The Supreme Court applied the stringent provisions of this act in numerous cases,- even where the first sale was made by judicial authority, but the sheriff’s deed had not been registered, so as to effeet the rights of third persons subsequently acquired. In the ease, among others, of Perron v. Maillan, 11 L. R. 489, the defendant was in possession under a purchase from the original proprietor, who sold long after the' date of the sheriff’s deed, and it appeared that the sheriff’s deed had never been recorded in the parish where the land is situated, and it was not shown that the purchaser had any knowledge of the sheriff’s sale, and the court affirmed the judgment below, by which the second sale was held- to convey the best title.
    The same decision was made in the case of Murphy v. Jundot, 2 R. R. 378, in which Mrs. Clark, the first owner, mortgaged the lot after the sheriff’s sale, but the deed had not been registered. In both these cases, there had been judicial proceedings, a judgment and fieri facias executed, but these persons were left ignorant of any divestiture of title by neglecting to record the sheriff’s deed of sale. The provision of the Code of Practice, requiring sheriff’s deeds to be recorded in the clerk’s office, was intended to make them authentic, and admissible in evidence, without proof, but did not change the provisions of the act of 1813. 3 R. R. 160. See further on this point, William, v. Hagan, 2 L. R. 122. 4 L. R. 241. 15 L. R. 269. 7 M. R., N. S., 661.
    But the learned counsel for the plaintiffs contends, that his clients acquired their title in virtue of judicial proceedings, and such proceedings are notice to the whole world. The proposition to that extent cannot be true. The doctrine of the lis pendens is much more restricted, and has no application to this case. It is true, that Bringier was arrested by one of his creditors, on the mesne process, and offered to make a cessio bonorum ; and on his voluntarily executing an assignment for the use of his creditors, he was discharged from the custody of the sheriff. The doctrine of the lis pendens, we understand to be this, that when a contest arises before a court of justice, relative to the title to property, no sale or other disposition of it, pendente lite, can oust the jurisdiction, and that the judgment finally rendered, will be conclusive upon the parties and all persons thus acquiring a pretended title. We are not aware that it has ever been contended, that every body is bound to know all proceedings had in a court of justice, where contracts entered into, under such proceedings, much less the sale of property by sheriffs, trustees or syndics, made in virtue of a judgment of the court, but by virtue of an authority derived from the consent of one of the parties. The history of this doctrine is well known. Originally, in the earlier period of the law, things in controversy, about which there existed a litis contestatio, were regarded as res litigiosae, and were incapable of alienation. They were, pending the controversy, considered as extra commercium ; all pretended alienations were, therefore, regarded asradically null. Insensibly, the principle came to be what it is considered at this day, as we shall endeavor to show by authorities, to wit: that, notwithstanding such alienations, pendente lite, the judgment finally pronounced should conclude both parties and privies thus seeking to acquire rights. See Fr. 3 D., de litigiosis, 44, 46. 4 Gains, 117. 1 Maynze éléments de droit Romain, 328. Makeldey, Institutes de droit Roman, 117 French Trans. The authorities cited by the counsel from Martin’s Reports, only go to show, that insolvent proceedings are- judicial proceedings, but there is not to be found an intimation that the whole world is bound by all judicial proceedings in every case.
    This doctrine is fully developed by Judge Story, in his Treatise on Equity Jurisprudence, vol. 1, 406. After speaking of tire registration of deeds as constructive notice, he says, “ It is upon similar grounds, that every man is presumed to be attentive to what passes in the court of justice of the State, or sovereignty, where he resides; and, therefore, a purchase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice, in point of fact, effects the purchaser in the same manne.r, as if he had such notice; and he will be accordingly bound by the judgment or decree in the suit. Ordinarily, it is true that the decree of a court binds only the parties and their privies in representation or estate. But he who purchases during the pendency of a suit, is held bound by the decree that may be made against the persons from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired, and such purchasers need not be made a party to the suit. '* * *' It is a rule founded upon a great public policy; for otherwise alienations made during a suit might defeat its whole purposes, and there would be no end to litigation ; and here ax-ises the maxim : pendente lite, nihil innoveiur, the effect of which is not to annul the conveyance, but only to renden- it subservient to the rights of the parties in the litigation.” The-author adds still another modification of the rule, to wit,, that “ a Us pendens, being only a genex-al notice of an equity to all the world* it does not effect any particular person with a fraud, unless such person had also special notice of the title in dispute in the suit.”
    But, in truth, the cessio bonorum is nothing more than a contx-act between the debtor and his creditors, although generally conducted, according to certain formalities under the sanction of a court of justice. This, is more especially the case in voluntary suri-endex-s. It is treated of in the code, under the liead of conventional obligations. The court, under whose eye the px-oceedings are conducted, so far from pronouncing upon the title to property, mex-ely ordex-s the discharge of the debtor from arrest, on his executing a voluntary assignment of his estate for the benefit of his creditors. That assignment is in itself a contract, and in this particular case does not appear ever to have been accepted or assented to. For ought that appears, the mass of creditors were us ignorant of what was done as Carry or Garland nearly twenty years after-wards.
    The judge of the district court more than intimates, that the filing of the sheriff’s deed, together with a copy of Trudeau's survey, in the land office at Ouachita, was a sufficient .constructive notice to the defendants of the purchase made by the plaintiffs’ ancestor and his associates. But, it is obvious, that the law has not made such filing equivalent to notice, and that the land officers at Ouachita, having no authority to confirm the grant, the only object was to give them notice of the claim, in order that the land embraced within the limits of the grants should be reserved from public sale. No one goes to the public land office to ascertain who is the owner of particular tracts of land, but only to learn what land is vacant, and subject to entry or sale. It is further intimated, that Curry and Garland did not purchase land, but merely a claim which is only an incorporeal right, and that on this ground, also, registry was not required. But, it cannot be doubted that land was sold; the only doubt was about the title. It is true, the title was inchoate, but that does not prove that the thing substantially sold was what land remained not disposed of by the Government, and the right to enter the same quantity previously disposed of in any land’ district in the State, as shown in the case of Stacey v. Hamner.
    
    It is upon this principle we contend, that if the plaintiffs are entitled to recover at all, in the opinion of this court, they must take only one-third of the land, the title to which was already confirmed, together with one-third of the scrip for six thousand and thirty American-acres precisely, as would have been adjudged to 'them if they had been parties in the suit of Curry and Garland v. The United States. They remained silent until that suit had been carried to a successful termination; and, if they are to participate in the result, they ought to pay their share of the expenses incurred for the common benefit of all parties, and not take one-third of the land with a most advantageous location, and throw upon our hands the right to make up the deficiency out of the refuse lands belonging to tire domain. It is, however, agreed, that as to our equitable claim for contribution towards expenses, taxes paid, &c., the matter is to be left open for future adjustment. The land to which the title was actually confirmed, was about thirty-two thousand arpents, instead of forty thousand, called for by the grant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from a judgment of the-court of the Fifth District of New Orleans, by which the plaintiffs recovered from the defendants one undivided third of certain lands situate in the parish of Concordia. The judgment also dismissed the petitions of intervention of John McDonogh and of George T. Williams 8f Co.., creditors of Rice Garland, one of the defendants. The appeal is taken by the defendants and the parties intervening, and the case has been argued by the counsel of each.

The petitioners, daughters and heirs of Jonah Bastable, deceased, claim of the defendants the undivided third of a tract of land situate at the confluence of the Ouachita and Black rivers, in the parish of Concordia, said tract containing forty thousand superficial arpents.'

The title set up by the plaintiffs is a deed made by the sheriff of the parish of Orleans on the 25th June, 1828, which recites that at a public sale, after legal advertisements, made by said sheriff -on the 10th May of the same year, under an order of the District .Court of the First Judicial District of the State of Louisiana, in the ease of Louis Bringier v. His Creditors, the property therein described was adjudicated to Isaac Lambert, Jonah Bastable, and William Brothers. The description of this property in said deed is as follows : “A claim for forty thousand arpents of land in Ouachita, situated at the confluence of Ouachita and Black rivers, granted to the said Bringier through his father, by the Baron de Carondelet in 1796; the original titles certified by Gurley, Register of the Land Office, were given to T. B. Robertson, Esq. whilst our representative in Washington City, in the year 1815. It is probable that a duplicate drawn out of the office of the late Mr. Bouchou, Surveyor General of this State, about the year 1820, and forwarded to the western land office, has been there recorded ; however, Mr. Bouchou kept a copy, which is in the records under the charge of the surveyor general.”

This sheriff’s deed was recorded on the 27th June, 1827, in the clerk’s office of the First Judicial District Court. It was also registered in the office of alienations in the parish of Orleans, about the same time. It was a third time registered in the land office at Munroe, (being the United States land district in which the land was situated) at a time which is not shown by the evidence, but which must have been about the 8th February, 1837', because the said registry was mad;e under the actpf Congress i‘ for the final adjustment of claims to lands in the State of Louisiana,” approved the 8th February, 1,835; by which act the limitation for recording evidence in support of claims was two years, counting from the passage of said act. Finally, the sheriff’s deed in question appears to have been recprded a fourth time, in the office of the recorder of the parish of Concordia, on the 21st December, 1846.

The title of defendants is a notarial act of sale from Louis Bringier to Thomas Curry and Rice Garland, passed at New Orleans before Seghers, notary, on the 13th April, 1841. The description of the property in the conveyance is as follows: “All the right, title, interest, and claim, that he (the vendor) may have in and to a certain tract or parcel of land situate in the county of Concordia, on the east bank of .the Rio Negro, commonly called Black river, commencing at the mouth of the bayou Tensas, having such front on said Black river, running back on the lower line east fourteen hundred perches or poles, on the back line running north two thousand eight hundred perches or poles, and on the upper-line three hundred and eighty perxlres or poles on the bayou Tensas, thence to the mouth of said bayou, as will give the superficial quantity of forty thousand arpents, according to a plan of survey made by Don Carlos Trudeau, formerly Surveyor General of the Province of Louisiana, on the ,4th September, 1796, in obedience to an order of survey given by the Baron Carondelet, formerly Governor of the Province of Louisiana, the original plan of survey has been delivered by said Louis Bringier to the purchasers, who acknowledge the receipt thereof.”

This act of sale from Bringier to Curry and Garland appears -to have been recorded in the notarial records of the parish judge of Concordia parish, on the 11th May, 1841. The interest of Rice Garland in the property thus purchased was divested by a sheriff’s sale, under a writ oí fieri facias issued upon a judgment obtained by the Bank of Louisiana against said Garland. This sheriff’s sale took place on the 5th December, 1846, and the defendant Stacy, being the highest bidder, the -interest of Garland in the Bringier claim was adjudicated to him.

It is thus seen that the plaintiffs and defendants both hold under Bringer, and the controversy is, in which of these parties the right of Bringier is vested. The Bringier claim having been affirmed by -the United States Court for this district, by judgment rendered at the suit of Garland and Curry v. The United States, which judgment -is now final, the party in whom the right of Bringier is must recover the property. Of the three parties, purchasers at the sheriff’s sale of the 10th May, 1828, two intervened in the suit in the United States Circuit Gourt, and the two undivided thirds of Lambert and Brothers, in the said purphase at sheriff’s sale, became vested in the defendants by compromise.

The evidence shows that Louis Bringier, the original claimant of this large tract of land, filed his petition for the benefit of the act for (he relief of insolvent debtors in actual custody, in tho District Court of the First Judicial District of the State of Louisiana, on the 3d November, 1827. Annexed to his petition was a schedule, containing a statement of his debts and also of his property, as required by the act of 1808. One of the items of property on Bringier's schedule (the fourth) is that now in controversy; which is described in said schedule in the identical words of the description in the sheriff’s deed to the ancestor of plaintiffs, which have been copied.

Upon the filing of this petition and schedule, an order of court was made for notice to Bringier’s creditors to appear in open court on the 26th November, 1827, to show cause, if any they had, why the petitioner should not be discharged according to the prayer of his petition.

On the 26th November, 1827, the day fixed by the said order, the record shows that Bringier appeared in court, and having made an assignment of all his property to the sheriff of the parish of Orleans, in trust for the use of his creditors, and having taken the oath prescribed by law, and no opposition having been made to his discharge, judgment was rendered discharging him from imprisonment.

The record also contains the assignment, signed by Bringier, which is in the following words: “I, P. L. Bringier, do hereby assign and transfer to the sheriff of the parish of Orleans, in trust for the security of my creditors, the whole of my property as contained in my schedule.”

We have seen that the sheriff sold on the 10th May, 1828, the property in question. The deed slates that it was made on an order of court, given in the case of Bringier v. His Creditors. The record of the casé of Bringier v. His Creditors does not exhibit any special order of court for the sale of the property, but it is, perhaps, to be presumed there was such an order. Nothing, indeed, in the act of 1808 requires a special authorization of court to the assignee of the insolvent debtor, for the sale of the property assigned to him in trust for the creditors. In this respect, this law differs from the law of 1817, regulating the proceedings in a cessio honorum. By the 30th section of that law, the syndic must present his petition for the sale of the property surrendered. We are of opinion, that the non-exhibition of an order of sale does not invalidate the plaintiffs’ title.

The statement of the titles under which the plaintiffs and defendants respectively claim, we have taken from the able and well prepared opinion of the learned Judge of the Fifth District Court of New Orleans, in the leading doctrines of which, we fully concur.

Although the two defendants claim under the insolvent Bringier, yet Stacy does not hold directly from him. He purchased the interest of Garland at sheriff’s sale under a judgment against Garland in favor of the Bank of Louisiana. This sale was made on the 5th of December, 1846. The claim of Curry and Garland to the land had then been confirmed by the court of the United States. The title of Garland was then a judgment, and the land thus held by Garland in his name was purchased by Stacy and paid for by him to the seizing creditor. It is obvious, that his position in relation to the plaintiffs is materially different from that of the other defendant who claims under a sale from the insolvent previous to the confirmation of the Bringier claim. According to numerous decisions of this court, the plaintiffs’ rights being strictly equitable, and having permitted Garland to take and hold one-half the property in his own name, those rights cannot be enforced to the detriment of bond fide judgment creditors of Garland, or purchasers for a valuable consideration, without notice. The respective rights, therefore, of the two defendants, depend upon different principles.

Curry, as we have seen, claims under a recorded authentic act from Bringier, and Bringier had previously ceded his interest in the lands to his syndic for the benefit of his creditors. The assignment which he made in open court was not recorded, nor was the sheriff’s deed to the plaintiffs’ ancestor in the parish of Concordia, where the lands are situated. The principal argument of the defence has been directed to the effect of this non-recording. It is said that it renders the sheriff’s deed without effect as to third persons. There does not appear to have been any notice on the part of the defendants of the title of the plaintiffs; there is no allegation or evidence to this effect.

The district judge was of opinion, that the sale by the syndic was not one of lands required to be recorded under the registry acts, but of a claim to lands under a title not confirmed by the government of the United States, and that a registry of the proofs of the claim and transfer in the land office of the district within which the lands were situated, was a sufficient recording to give effect to the sale to the ancestor of the plaintiffs.

The right which the insolvent ceded to his creditors, appears in his schedule as “my claim in 40,000 arpents of land in Ouachita,” situate, &e.

The sheriff’s deed describes it asa “claim for 40,000 arpents of land in Ouachita,” situate, &c., and purports to transfer to the purchaser the above described claim, and all the right, title and interest which the said insolvent or his creditors had on the 3d of April, 1828, or at any time since had in or to said land, or any part thereof, &c.

Curry and Garland on the 13th of April, 1841, from Bringier bought what? Let the act speak for itself: “Personally came and appeared Louis Bringier, residing in the city of New Orleans, who declared that for and in consideration of the sum of five thousand dollars to him in hand paid in ready money by the hereinafter named purchasers, the receipt whereof he does hereby acknowledge, he, the said Louis Bringier, does, by these presents, sell, bargain and convey, assign and make over forever unto Thomas Curry of New Orleans, and Rice C. Garland of Opelousas, both here present and accepting jointly each for one undivided half, all the right, title, interest and claim that he may have in and to a certain tract or parcel of land situate in the county of Concordia, on the east bank of the Rio Negro, commonly called Black river,” &c.

The act recites, that the original certified plan of survey has been delivered by said Bringier to the purchasers, who acknowledged the receipt thereof; that the sale is made without any warranty on the part of Bringier, except against himself, his heirs, and those claiming under him,- and that the purchasers knowing that said title has not been confirmed by the United States, they take upon themselves all the risk and expense of procuring the confirmation thereof.

This purchase from Bringier, fourteen years after his bankruptcy and after the sale of the same thing by his syndic to the plaintiffs’ ancestor, turns out to be a simple quit claim on the part of Bringier of the right and interest he may have in the object sold. Bringier does not undertake even to declare that he has any real interest in it. He knew he had ceded it to his creditors to be applied to the payment of his debts, and he knew it had been sold for that object. Hence the unusual, guarded and equivocal description, the use of the words “may have," and the exclusion of any warranty on his part, except against himself, his heirs and those claiming under him. Had he undertaken to have sold a subsisting right, his warranty and his word would stand falsified by his transfer to his creditors. He sells a mere contingency, and the whole affair was a speculation on the part of the purchasers on the chances of giving it such a direction as would ensure its success.

As this claim has resulted in a judgment of a court in favor of the title to the purchasers, it is not necessary that we should make any statement in relation to it, except that we concur with the district judge in the opinion, that it is not within the letter or purpose of the registry acts. It is not a claim by which lands are to be affected in the language of the statute.

If any right can be predicated of the claim, it falls under that class denominated incorporeal rights. No action could be maintained for the possession or ownership of the land under this claim, as it is in evidence before us; and we can consider it as having no force or value whatever, except as addressed to the bounty of the government of the United States.

We do not think, therefore, that the rights of the respective parties as they are presented before us by the evidence and arguments of counsel, rest upon the rules of the petitory action. The legal title, or indeed the only title, is in the defendants. The plaintiffs’ rights are strictly equitable; and the real question is, whether the judgment obtained, by which the title has been vested in the defendants adversely to the United States, inures to the benefit of the plaintiffs to the extent of their interest.

In order to complete the transfer to the ptochasers of the claim under the syndic’s sale, all that it was in their power to do was to record it in the land office of the district where the lands were situated. The transferree is only possessed of the thing transferred, if it be debt, right or claim, after notice has been given to the debtor. If there was any obligation attached to this claim, the United States owed it, and the land office was the proper office to notify of the transfer. We find that a copy of the plan of survey, as it is called, the original of which is said to have been delivered by Bringier on the sale to Curry and Garland in 1841, (which is the only evidence of any claim which has been before us,) was, together with a copy of the deed of the sheriff as syndic, filed in the land office at Monroe, under the act of Congress of February C, 1835, and a favorable report from the land officers solicited in behalf of the claim. We think these documents are to be taken as having been filed under that act, or with a view of taking that benefit of it, and consequently previous to its expiration, or within a short time after; at all events, previous to 1841.

The proper notice having been given of the transfer of the claim, it results that Bringier, when he made the quit claim to Curry and Garland, had no interest whatever in it. The defendants are presumed to have been cognizant of the proceedings in insolvency of Bringier and of the assignment made by him under it. The judicial proceedings carry with them notice ; and the assignment made in court to the syndic had the same effect as if recorded in the parish where the lands were situated, there being no law requiring such assignments' to be recorded. They were buying a land claim, and the land office was the’ proper place to look for the evidence of its ownership. They knew it had never been confirmed, and they knew that if it was not a fraud it must be registered among other claims for land according to the laws of the United States. The’ reserve with which Bringier invests his obligations in the act of sale, would create distrust in the mind of any bond fide purchaser. We think, with the district judge, that the defendants bought the claim cum. more, and must account to the plaintiffs for the share of their ancestor in it.

We soe no reason why the interventions should be sustained, and. think the district judge did not err in dismissing them.

The judgment of the court, so far as relates to Stacy, we think erroneous.

It is therefore ordered, adjudged and decreed, that the judgment of the court below, so far as the same relates to the defendant David S. Stacy be reversed, and that there be judgment in his favor for one-sixth part of the grant, and that he be forever quieted in his title to the same against the pretensions of the plaintiffs. It is further ordered and decreed, that as it relates to the defendant Thomas Curry, the judgment of the court below be affirmed; and that the plaintiffs recover one undivided sixth of said grant, subject to the reservations in the judgment of the court below, to wit, that the allowance of 3000 acres of said land, for the payment of counsel’s fees, be first deducted from the whole grant, and borne by the parties in proportion to their interest in the same. And it is further ordered, that as it relates to the defendant Curry, the case be remanded for further proceedings according to the agreement of the parties and the judgment of the district court; and that one-half of the costs of the court below and on this appeal, be paid by the defendant Curry, and one-half by the plaintiffs. And it is further ordered, that the judgment dismissing the intervenors be affirmed, with costs in both courts.  