
    NO. 8389
    No. 8419
    COURT OF APPEAL PARISH OF ORLEANS.
    JOHN D. NIX, JR., versus ALEXANDER MADISON.
    By Dinkelspiel; J.
   Dinkelspiel; J

It is evident from an examination of Doth these records that they ought to be consolidated, for the reason that they are interwoven and bring before this Court the same subjeot matter and therefore the consolidation and the motion must prevail.

The question presented for our consideration has been passed upon in the same proceedings by this Court, Ho. 7900 of its docket and the syllabus in that oase reads:

"A Sheriff's proces verbal of o sale fulfills all the requirements of the Code of Practioe and is of itself a oomplete deed.
The seizing creditor who becomes the adjudicates of property may retain in his hands such a proportion of his bid as will satisfy his claim and is bound to withhold the balance to pay special mortgages or privileges or the debtor himself.
He has no right to pay and the Sheriff has no right to receive an amount in excess of his writ the duty of the Sheriff under Article, Code of Practice 670, to announce that the purchaser shall retain in his hands the amount of superior privileges and special mortgages is only a relative duty in the interest of the owner and of subsequent mortgagees and not absolute and does not affeot the validity of the sale."
It appears to us, clear that the property in dispute in the first suit is the same identical property which was declared to be property sold trader a judgment of the First City Court of the Parish of Orleans and bought in by Joseph Petrie & Company. They paid into the hands of the Constable sufficient money to satisfy the writ in that oase and that was all that was necessary,as decided by this Court. The property was adjudicated to the defendants on April 19th, 1915 and the proces verbal of sale made to them of that date and registered in the Conveyance Office October 11th, 1915; the adjudication in the Succession of Siadflson was made on October 15th, 1915, three days after the registry of defendant’s prooes verbal, but it was there oontended that the prooes verbal was not an absolute transfer of the above property to Petrie & Company. This contention, 'said the Court is not supported by law or authority, quoting Article 690 of the Code of Practice, Civil Code S608 (3586);Article 691, 693 and 693 of the Civil Code discloses that the Sheriff shall pass an act of sale to the purchaser and state what the act of sale shall contain and Article 694 direots the Sheriff to sell to the purchaser all the rights of the debtor to the thing sold and Article 695 of the Civil Code concludes "This act Of sale adds nothing to the foroe and effect of the adjudication but is only intended to afford the proof of it, consequently if the Sheriff has omitted any .of the formalities above prescribed the adjudication shall not be void on that account if it otherwise appears that it was made by virtue of a legal authority and all the formalities requisite for its validity."
"That there is nothing to show that the defendants have made any further payments on the purchase price of said property other than the original deposit of $53.50 and that in as much as the terms of sale were cash, the defendants have no title until they have paid the Constable the entire prici of adjudication."

The Court adds such is not the law or jurisprudence.

In that entire controversy this Court has decided, quoting numerous authorities that the defendants there got a complete title to the property in question.

notwithstanding the decision of this Court, the plaintiff, Nix, in the Succession of Alexander Madison, had appointed a curator ad hoc and there attempted and did seize the identical property bought by Petrie & Co. and the latter filed a petition for injunction in the Civil District Court in the same case, entitled "John D, Nix, Jr. vs.OAlexander Madison, "being 111,303 of the docket of said Court and amongst other allegations claimed that the seizure of petitioner's said property is illegal, null and void because the property of petitioner could not be seized in proceedings in which they were not a party and without notioe and further that Madison was dead long prior to the issuance of the writ of Fi Fa and no proceedings could be oarried on against a dead person and further that said property was not the property of Madison but the property of petitioners and that John D. Hix, Jr., the plaintiff had full notice of the sale and adjudication end was present and bidding at the sale made by the Constable and that he, Hix, had intervened in said proceedings in the First City Court, recognizing petitioners' title to said property.

On lotion to dissolve the injunction made by the attorneys of Hix, that on the face of the papers talcing all the allegations of the petition as true, there was no oase and various grounds unnecessary at this time to state.

There was also filed an exception of no cause of action and further that the case had not been properly allotted.

After hearing the Court maintained the injunction, dissolved the writ with damages and also maintained that the oase had not been properly docketed and from these judgments there is this appeal.

We have endeavored to give in as concise terms as possible, all the issues involved in this case and coming to the conclusion that the case No. 7900 of the dooket of this Court, entitled John D. Nix, Jr. vs. Joseph Petrie & Co. Ltd., this Court had fully and finally determined this oase and parties interested bound thereby and having quoted from the opinion of this Court, giving its reasons, we see no necessity of further discus-stoigxilciHXicK#: sion and we are of the opinion that the Judge erred in dissolving this injunction with damages end that he further erred in maintaining the exceptions of no cause of action.

Code of Practice, Article 685.
Ash vs. Southern Chemical & Fertilizer Co. 107 La. 312.
Robinson & Co. vs. Cosner, 136 La. p. 595.

We are of the opinion that whatever claims plaintiff makes as against the proceeds of sale, in the hands of Petrie & Company and whatever claims there may he hy Petrie against the property in question, can be and must be litigated in these proceedings, now ordered consolidated; together also with whatever olaims and counter claims the parties may have against each other growing out of the rents and revenues received or due by Nix, and the expenditures made by him on account of the property; to the end of establishing what balance if any is due Six on the note herein sued upon, end how much of the price of sale due by Petrie may remain to pay the said bale.nce.

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the District Court be and hereby is annulled, reversed and that there now be judgment in favor of Petrie & Company, maintaining the writ of injunction and that the exception of no oause of action and the further exception of want of allottment be and the same are hereby overruled and this case reamdded to be proceeded with in accordance with law and the views herein expressed, at cost of said Mix in this Court and costs in the lower Court to await final judgment.

Judgment reversed and remanded.

NO. 8389-8419.

JOHN D. NIX, JR. VS ALEXANDER MADISON.

STATS OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

OH APPLICATIOH POR EBHSARIHS.

P3R CURIA!!:

Plaintiff complains of eur judgment gene rallyXas to which we can only refer to our former opinion. He complains specially that in the last clause of that opinien we have denied his mortgage and vendor’s lien rights against the property itself, and reserved him only a personal <3^Uvn/ against Petrie & C*, the owners of the property.

However we may have expressed ourselves, we intended no such result, as shown hy our decree; which is strictly in accord with a decree handed down this day in the matter entitled Schiltoffsky vs Marmillon, (No. 8134 of our docket), plaintiffs mortgage and vendor's lien rights are fully presefved.

We did not decide in our decree of Pehruary 21st 1921 (Hix vs Petrie, Ho 7900) that Petrie's privilege was superior to that of Mix, or vice versa; on the contrary we said; "it is immaterial in this case whether plaintiffs» claim was superior or not to the defoudant’s on the property seized". So that that question is left quite open.

December 12th, 1921.

We regret that we oannot make ourselY83 olearer about a matter which to us seems quite clear. Again we refer to the Schilieffsky case, supra.

Rehearing Refused.

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