
    No. 7319.
    Francois Lacroix, C. H. Stewart, Transferree, vs. Andre Camors and Henry St. Gez.
    Where purchaser at tax sale has purchased property of A for a certain price, and paid over to the sheriff the amount of the writs, retaining in his own hands the balance; and afterwards, both the right of redemption, which A has by law, and all bis interest in the property are seized and sold by a creditor in another proceeding, A no longer has any claim to the balance in the hands of the original purchaser, iu fact no interest at all, as whatever he may have had has been sold.
    A jmtition for a rehearing, which does not set forth the grounds on which the complainant charges the judgment is erroneous, though accompanied by a motion for delay to file pnuted briefs in support of application for rehearing, does not comply with tholaw, and hence does not retard the operation of the law under which the judgment becomes final.
    APPEAL from tlie Fourth District Court for tlie Parish of'Orleans. Houston, J.
    
    
      Gluts. Zouque, for Plaintiff and Appellant:
    Í. The adjudicatee at sheriff’s sale, made for cash, must pay the full amount of his bid.
    2.The sale of a tax payer’s right of redemption does not deprive him of his claim for the amount of the adjudication of the property.
    
      Sinyleton & Browne, same side, on ai>plication for rehearing:
    1. That in case of a sale made by a sheriff, the adjudication divests the defendant of whatever title he has in the property sold and vests the sathe in the adjudicatee. R. C. C. 2G08, 2617, 2620 ; R. C. P. 690 ; 6 La. 550 ; 13 La. 290; 19 La. 235; 9 Rob. 405, 414; 11 Rob. 270.
    2. That the paper title to property thus sold must not be confounded with the ownership, since it is nothing more than the mere evidence of title or ownership. R. C. C. 1762.
    3. That the purchaser, at sheriff sale, of property sold to pay taxes has the light, after satisfying the writ under which tlie property was sold, to retain a sufficient portion of the remainder of the piice to pay the tax mortgages and liens resting upon the property thus purchased by him, aud that he is bound thus to apply the sum reserved, and not retain and use it for his own benefit and apply other money in his hands, belonging to defendant in execution, to pay such tax mortgages and liens. R. O. P. C79.
    4. That the vendor, with the light of redemption for a stated period, has the right to receive the price for which the property sold, and retain it until he exercises his right of redemption, at which time he must return the whole price. R. C. C. 2567, et seq.
    
    5. If he fails to redeem, he lias the right to retain the price for which his property was sold with the right of redemption. That 1 lie failure to redeem does not forfeit the pnce for which the property sold. Jí. C. C. 2567; 32 An. 784.
    íí. That any hiatus in a legislative act, which act clearly suggests what the omissions are which constitute such hiatus — aud if such omission, if not supplied or construed with the act, violates clear provisions oflaw and works great injustice to parties, then the court in last resprt must supply the omissions constituting such hiatus and thus administer right and justice between the parties, and not wrong and injury.
    
      A. Robert, P. JE. Théard, G. H. Théard, Vitas. J. Théard, for Defendants and Appellees:
    1. Real estate sold for taxes is redeemable upon reimbursement to the purchaser of the amount paid by him, with fifty percent, additional and costs. R. S. 3464; Acts of 1870, E. S., p. 40, Sec. 22.
    
      2. If the amount claimed by the tax collector be less than the price bid, and the balance of said price be retained by the purchaser, the owner of the real estate possesses two rights: 1st. lie may redeem upon reimbursement of the real amount paid by the purchaser, with fifty por cent, additional, as aforesaid. 2d. Or, he may ratify and confirm the sale, and claim the balance of the price bid.
    3. But, if, befoie exercising either of these two lights, he allows his property to bo seized again by an ordinary creditor under a judgment against liim, and his right of redemption under tho former sale be at tho same time seized and sold, then the owner is entirely and absolutely expropriated, and ho loses his rights, both of redemption and of ratification, under tho tax salo These rights become vested in tho purchaser of the property under tho second sale, and he, alone, can redeem the property.
    4. No definitive deed of sale can be executed without payment of the taxes. R. S. 3020. Hence, tho purchaser may tender, and the sheriff may accept, as a portion of the price oi adjudication, the amount of taxes paid by the purchaser, in order to obtain a clear title.
    5. No balance due by the purchaser at the tax sale can bo paid to the original owner, if he lias allowed liis property to be again seized and sold with the right of redemption.
    6. The right of redemption cannot be sold separate from the xiroperty itself. It is inherent to the property, and the price may be settled in taxes.
   The opinion of the Court was delivered by

Lew, J.

Certain property of Francois Lacroix was seized and offered for sale by the Sheriff of the Parish of Orleans, to satisfy executions of fieri facias on judgments for City taxes. At that sale Andró Camors hid the price of $7,100, and the property was adjudicated to him. The amount due on the writs was $2,000, which sum Camors paid to tho Sheriff, retaining in his hands the balance of $5,100. Under the law, Lacroix had the right to redeem the i>roperty within a certain time, on payment in cash of the amount of fifty per cent, over and above the amount of the tax, and all costs incurred by the sale, and tho amount of all taxes paid since the sale.” Before the expiration of the time, within which the right of redemption could ho exercised, tho same property and the right of redeeming it ,werc seized in the ease of the Metropolitan Bank vs. F. E. Dumas and Francois Lacroix, and offered for sale, when the property and the right of redemption were adjudicated to H. St. Gez, for the sn:n of $10,00!), of which St. Gez paid $6,295.04, in cash, and $3,704.96, in tax receipts for taxes due on said property. St. Gez thou exercised the. right of. redemption and sold the property to Camors for the sum of $16,000. ■ It is admitted by the defendant that St. Gez was only a nominal party,‘and that he made tho purchase above mentioned, at the instance, for the benefit, and for the purpose of perfecting Camors’ full title to the property.

Lacroix, in his lifetime, instituted this suit for the purpose of recovering the sum of $5,100, retained by Camors on the first sale, and also the sum of $3,704, the amount paid in tax receipts on the second sale. After the death of Lacroix, his rights to this suit were sold at probate-sale and C. H. Stewart bought the same, and this suit is now prosecuted by Stewart.

Tliere was judgment of the Court a qua in favor of defendants, and plaintiff has appealed.

lVe find no error in the judgment. The purchaser at the tax sale paid to the sheriff the amount called for by the writ under which the sale was made. The defendant, in the writ, had been not fully divested of his title and ownership of the property. He had, under the law, two years within which he might, on certain fixed conditions, redeem the property and have his full ownership and possession restored to him. His acceptance or receipt of the amount bidin excess of that due on the writs, would have been a ratification of the sale and would have extinguished his right to redeem. Before the expiration of the right of redemption, other judgment creditors seized this same-property, all his right, title and interest therein including the right of redemption, and the last adjudication divested him of the property and his rights therein. The purchaser stood in his shoes, was transferree of all his rights and cut him off entirely. It would be most inequitable and unreasonable if his claim in this suit were recognized.

If Lacroix had redeemed the property, it cannot, for a moment, be contended that he would have to pay to Camors the whole amount of the adjudication, including the $5,100 which Camors had never p'a-id to anybody. The very terms of the law declared what he should pay, to-wit: the amount of taxes paid and fifty per cent, additional thereon, and the costs and taxes subsequently paid. At the second sale all his right, title and interest in the property were disposed of, including the right of redemption, and we think he was, by the last sale, stripped of the property and all claims incidental to or growing out of it. The. purchaser at the first sale became also the purchaser under the second sale, and is entitled to all the- rights which Lacroix had. St. Gez, when he acquired the right of redemption, could exercise it just as Lacroix himself could have done, and did so exercise it. To require him to do or pay more, has no foundation in law, equity or justice* The Judge, a quo well urges, in his reasons for judgment, that every bidder at the sale of the right of redemption knew that, iu order to redeem the property, he would be. only compelled to pay to Camors the amount the latter had paid for it, with fifty per cent, additional, and evidence of this amount was in the public records.

It is clear that if Lacroix had, himself, redeemed, he would not have been entitled to the balance of the purchase money from Camors. He did not, it is true, so redeem, but his right of redemption was sold, and all his rights growing out of, and incidental thereto, were acquired by another who stood in his place, with all rights, no more, no less; in other words, 1ns transferree acquired and represented only the rights and powers, in that regard, which Lacroix had possessed. JEi'go, if Lacroix could not, on the redemption claim the balance of the purchase price, if he redeemed, how can he do so, when he has parted with all right to redeem which has been vested in such transferree, subject to all the conditions which attached to the right when held by Lacroix.

We find no error in the judgment appealed from, which is affirmed at appellant’s costs.

On Application por Rehearing.

Pocrcft, J.

In this case, a judgment was rendered by us affirming the judgment appealed from, on the 20th of March, 1882.

On the 30th of March following, within six judicial days, appellant filed the following petition :

The petition of C. H. Stewart, the transferree of all the rights of plaintiff and appellant, respectfully shows that he is advised thatthere is error in the judgment rendered by this Honorable Court against him, from which he now seeks to be relievod by this application for a rehearing, upon the grounds fully set forth in the printed brief to be filed.”

And on the same day he presented the following motion and obtained the order thereto attached:

Oil motion of Singleton & Browne and Charles Louque, attorneys for appellant, and a showing that appellant has filed a petition for a rehearing, and that a delay of fifteen days is necessary to enable counsel to prepare and print an argument in support of said application.
It is, therefore, ordered by the Court, that there be a delay of fifteen days granted to appellant’s counsel to file a brief in support of his application for a rehearing.”

On the 6th of April, following, appellees moved for a rule on appellant to show cause why the judgment rendered by this Court should not be considered final; on the ground that in the petition filed for a rehearing by appellant, on March 30th, 1882, he did not set forth the reasons for which he thought the judgment was erroneous, or cite the authorities in support of his¡ opinion, as required by Art. 912 of the Code of Practice, and did not comply with Rule IX of this Court.

The relief prayed for is resisted by appellant, who strenuously contends that his manner of proceeding is in keeping with the practice of attorneys, and is sustained by the uniform and uninterrupted interpretation given by both Bench and Bar, to the provisions of Art. 912 of the Code of Practice, and of Rule IX of this Court.

The Article of the Code reads as follows:

In the interval bet.ween the day on which the judgment is rendered and that on which it becomes final, a party dissatisfied with the judgment may apply to the Court for a new hearing in the cause; and for this purpose shall present a petition, in which he shall state substantially the reasons for which he thinks the judgment erroneous, and shall cite the authorities in support of his opinion.”

Paragraph 1 of the Rule IX, reads as follows:

“ Applications for rehearing must be by petition, filed within the legal delay, and must be accompanied by a printed statement of all the points and authorities on which the party founds his application. Additional time for elaborating the argument on such points and authorities may be granted upon a proper showing, if made before the delay expires.”

The Code of Practice and the Rule both unequivocally and positively require that the application for rehearing must disclose the reasons for which the judgment is charged to be erroneous.

In the exercise of its discretion the Court has provided for a delay to allow the party complaining to elaborate his points, upon which the Code is silent.

But under either proceeding, the application must contain the grounds on which the judgment is assailed.

It is therefore clear, that an application for rehearing which complies neither with the Code nor with the Rule of Court, is fatally defective, and cannot retard the operation of the law under which the judgment becomes final.

The application in this case, complying with neither, cannot be entertained by the Court.

Our attention is called to cases where this Rule, which we consider imperative and inflexible, has been overlooked and not enforced by this Court, acting as alleged, under the uniform practice of veteran attorneys of great capacity and of acknowledged respectability. We can but deplore such erroneous departures from a rule of law so clear, so positive, and so easy of conception and execution, and we conceive it our plain duty, when called upon as in this case, to enforce the rights of a party who claims, according to law, that the judgment rendered in his favor be considered as final, when his opponent has failed to comply with the law, which extended to him the means of having the judgment suspended for the purpose of are-examination of the cause.

Custom or an interpretation which prevailed for a long series of years cannot be successfully invoked to defeat the clear and unambiguous meaning of a express provision of law. 4 N. S. 497, Hicks vs. Duncan & Sons.

Usage can be consulted for the construction of an ambiguous Statute, but not in the case of a clear and mandatory law.

Meeting with a similar proceeding in the case of Rosina Brown vs. Stroud, Executor, 34 A. , wo had determined to apply tho rulo in that caso, hut for reasons which .we give in tho opinion, we abstained, and took occasion to call the attention of tho Bar to this growing loose practice, and had thought that the warning would have been heeded.

Counsel in this case have preferred to deal with our ruling intended to secure a compliance with correct practice, as an obiter dictum, and now present a case in which the point can be finally disposed of.

There is error in the statement of counsel, that the loose practice wlxicli wo seek to correct lias been uniformly sanctioned by this Court, or universally followed by the Bar.

An inspection of the records in the Court shows that a very large number of attorneys strictly comply with the rule as written in the Code.

In the case of the Succession of Tabary, 30 A. 190, the application for rehearing was refused, because it was unaccompanied by a printed statement of the points and authorities on which die party founded his application. The record of that case shows that the manuscript application for rehearing contained numerous i>oints of alleged error in tho judgment.

For similar reasons a rehearing was refused in the case of Lafayette Fire Ins. Co. vs. Remmers, 30 A. 1349.

There is no force in the argument that by our order granting a delay to appellant, for the purpose of elaborating his points,, wo have can-celled Bule IX, quoad this particular case.

It is but fair to state that neither the application nor the motion were read to us, but were referred to by title and endorsement alone. We conceived that the application'filed was in compliance with the law, and we granted the delay contemplated by our Buie, for the purpose of elaborating grounds or points submitted, but not for the purpose of submitting grounds or points not contained in the application.

But if even wo had intended to suspend the effect or operation of our rule, we have no power, and certainly did not intend to deprive appellees of their rights under Article 912 of the Code of Practice.

Whenever a positive rule of law requires a thing to be done, or a proceeding to be instituted within a specified time, courts of justice are powerless to extend tho time thus prescribed or limited, unless the power can be derived from an express provision of law authorizing the exception from the general rule. Thus, the time prescribed by Article 587 of the Code of Practice, for the filing of transcripts of appeal, may, on proper showing, be extended by the appellate tribunal, under the special power conferred by Art. 883, and so of the extension of time authorized to bo granted by Art. 316 of the Code, to a defendant for the purpose of filing his answer.

Hut as no i>ro vision of law sanctions the modification of the positive rule established by Art. 912, C. P., touching the manner of applying for a rehearing, the attempt of this Court to provide for a different rule, or to sanction a contrary proceeding, would be as null as would be the attempt of a District Court in extending, beyond ten days, the time prescribed by Art. 575, for the filing of the appeal bond in suspensive appeals.

Whenever we inadvertently grant an order which may, in its practical effect, contravene a law of the State, we have no hesitation to rescind such order. Chretien vs. Poincy, 32 A. 132; same, 30, Succession of Kuntz.

Our conclusion is, therefore, that the rule was properly taken.

It is, therefore, ordered, adjudged and decreed, that the rule herein be made absolute; that a copy of the judgment rendered in this case on March 20,1882, be issued according to law, and that appellant pay costs of this proceeding.

Dissenting Opinion.

Fenner, J.

I find it impossible to concur in the views of my colleagues on this question.

If nothing had been done by the applicant for rehearing,' cxccjft the simple filing of a petition defective in the requisites prescribed by Art. 912, C. P., doubtless this would not operate to suspend the finality of the judgment. Hut the order granted by us on bis motion, filed with his defective petition, and within the delay allowed by law, granting him further time to file a brief in support of Ms petition, was equivalent to the granting of an extension of time within which to file the reasons and authorities.

He could not justly be deprived of the benefit of this order on any other ground than that of its absolute nullity, by reason of our want of power to grant such an order.

If tin? question of power were an open one, much might be said in Kupportof the position now assumed by the Court.

But it is notorious that, from a period beyond the memory of the present generation of lawyers, it has been the frequent practice of this Court to receive such petitions and grant such orders, and to give them effect as suspending judgment, and to consider and pass upon applications for rehearing so made, precisely as if made in strict compliance with law. If no express adjudication is found upon the point, this is not, in my judgment-, attributable to the failure of the Court to notice such proceedings, but ratlier to tlie fact that nobody ever before doubted or questioned the power of the Court to grant such orders upon such petitions, save in exceptional cases; the forms and delays prescribed by law, in judicial proceedings, are subject to judicial regulation and control on timely application.

This Court has constantly assumed and exercised such powers over the particular matter here presented. If, now, we conclude to reverse this practice, the obviously proper course would be simply to refuse to grant such orders upon such petitions, in the future, and to direct the clerk never to enter such order without first seeing that the petition conforms to the law as presently construed by us. But having granted the order, it seems to me that justice to attorneys and litigants requires that it should have the effect which it has always had under the practice of the Court.

As an illustration of my view, that Statutory mandates in such matters are not to be too technically enforced, I observe that tins following Article of the C. P. 913, reads as follows :

“The Court shall consider the reasons adduced in such petition, without argument, and if it grants a new hearing of the cause, shall state the points on which it wishes to hear the parties anew.”

This Court constantly grants rehearings without stating points. Are such orders nullities ?

I apt convinced the defendant in rule is protected by our order granted within the six judicial days, and, therefore, dissent from the opinion and order herein.  