On original hearing we sustained the plea of estoppel filed by A.C. Skannal, *Page 105 Jr., the defendant in the converted (petitory) action, and dismissed the suit of plaintiffs in the converted action. We said:
"As a result of the law laid down in the above mentioned decisions of this court, the moment the Federal Land Bank acquired its mortgage on the property in dispute from the widow and heirs of Zack Moore, who were in possession of the property, and at a time when the constitutional prescription of three years had run, the rights of the plaintiffs in the petitory action as co-owners of Zack Moore, if any they ever had, lapsed entirely as far as the Federal Land Bank and A.C. Skannal, Jr., are concerned, as they were innocent third persons whose rights had intervened."
On application for rehearing, counsel for appellants (plaintiffs in the converted action) stressed the point that they had attacked in their pleadings the foreclosure proceedings and the sale at which A.C. Skannal, Jr., acquired the property, and that they had in oral argument and in briefs urged the point that Skannal, the defendant in the converted action, acquired no title to the land because the foreclosure proceedings were null, and, since he had acquired no title, he was without interest or standing in court to urge the plea of estoppel which we sustained.
We therefore granted a rehearing for the sole purpose of considering the foreclosure proceedings in order that we might decide what rights, if any, A.C. Skannal, Jr., acquired at the sale.
Plaintiffs in the petitory action attacked the foreclosure proceedings on four grounds: *Page 106
(1) That the notes and copy of the mortgage were not attached to the petition for executory process.
(2) That the foreclosure proceeding was brought by Miss Nannie Skannal on two notes of the series due the Federal Land Bank, which notes had been acquired by her from the bank with full subrogation of all the rights and interest of the bank, but that she did not allege that she had obtained the consent of the bank, the holder of the remaining notes of the series, to foreclose, as required by the mortgage.
(3) That the advertisement did not state that in case of sale the notes still held by the bank should be secured by first mortgage on the property, as required by the mortgage.
(4) That the property did not sell for an amount sufficient to pay the foreclosing creditor, with attorney's fees and costs, and the balance of the debt due the Federal Land Bank.
Counsel for A.C. Skannal, Jr., who bid in the property at the foreclosure sale, contend that these are all mere informalities which were cured by the prescription of two years, under Article 3543 of the Revised Civil Code, as amended by Act 231 of 1932, page 732, which prescription was pleaded.
This article of the Code, as amended, reads as follows:
"That any and all informalities of legal procedure connected with or growing out of any sale at public auction of real or personal property made by any sheriff of the parishes of this State, licensed auctioneer, or other persons, authorized by an *Page 107 order of the courts of this State, to sell at public auction, shall be prescribed against by those claiming under such sale after the lapse of two years from the time of making said sale, except where minors or interdicted persons were part owners at the time of making it, and in the event of such part ownership by said minors or interdicted persons, the prescription thereon shall accrue after five years from the date of public adjudication thereof."
The property was sold at public auction, and Skannal bid it in on April 13, 1935. The slander suit was filed by A.C. Skannal, Jr., on February 10, 1938, and the answer of defendants, in which they denied that Skannal had title and set up title in themselves (thereby making themselves plaintiffs in the petitory action), was filed on March 1, 1938, more than two years after the date of the sale; so that, if the irregularities in the foreclosure proceedings complained of by plaintiffs in the petitory action are mere informalities, and if the prescription of two years is applicable to this particular case, then the attack on Skannal's title made by plaintiffs in the petitory action is barred.
Counsel for plaintiffs in the converted action practically concede in their brief, as they must, that the irregularities (1), (2), and (3) in the foreclosure proceedings complained of by them are mere informalities curable by the prescription of two years, under Article 3543 of the Code, as amended, and are cured if the provisions of that article of the Code are applicable to this case. But they argue that the two-year prescription under that article of the Code, as amended, has no application to *Page 108 this particular case, for the following reason:
Armelia Graham was one of the defendants in the slander suit and one of the plaintiffs in the petitory action. The interest she claimed to own in the land was acquired by inheritance from her mother, Cilla Brooks, who was a major at the time the sale was made. Cilla Brooks died on March 19, 1937, 24 days less than two years from the date on which the sale took place. Her daughter, Armelia Graham, who inherited her mother's interest, was a minor at the time of her mother's death. It is argued that prescription ceased to run the day the minor acquired her interest, because the general rule is that prescription does not run against minors.
Whether the two-year prescription pleaded by the defendant in the petitory action is applicable to this particular case depends upon whether prescription ceased to run when the minor became one of the co-owners of the property by inheritance 24 days before the end of the prescriptive period. Counsel argue that the minor's acquisition of an interest in the property interrupted the running of the prescription.
The wording of the Code, as amended, does not admit of such construction. The Code does not say that this prescription shall not run against minors. It says in terms too plain to be misunderstood that any and all informalities in legal procedure connected with, or growing out of, any sale at public auction of real or personal property, made by any person authorized by an order of court to sell at public auction, "shall be prescribed against by *Page 109 those claiming under such sale after the lapse of two years from the time of making said sale, except where minors or interdictedpersons were part owners at the time of making it". (Italics are the writer's.) In other words, if all those who own an interest in property are majors when the judicial proceedings are instituted and at the time the property is sold at public sale, such informalities as there may be in the legal procedure leading up to the sale and in the sale itself are prescribed against at the end of the two-year period. According to the wording of the article, prescription accrues at the end of two years unless a minor or minors were part owners of the property at the time of making the sale. The Code as amended goes further and says that, "in the event of such part ownership by said minors or interdicted persons, the prescription thereon shall accrue after five years from the date of public adjudication thereof".
The article of the Code is not ambiguous and must be interpreted to mean what it says. We cannot assume that the lawmakers overlooked the fact that contingencies of this kind might arise, and, if they had intended that the acquisition by a minor of an interest in the property within the two-year period after the sale should interrupt the running of that prescription, they could, and no doubt would, have used language to make such intent plain. We think the two-year prescription is applicable to this case, and we so hold.
As to the fourth irregularity complained of, which is that the property did not sell for an amount sufficient to pay the *Page 110 claim of the foreclosing creditor, costs, and the balance due the Federal Land Bank, counsel say that this is a radical defect, or an absolute nullity, not curable by prescription. We find it unnecessary to discuss this point further than to say that counsel's argument is based on the false premise that the property did not sell for an amount sufficient to pay the claim of the foreclosing creditor, the costs, and the balance due the Federal Land Bank.
The property sold for $950. According to counsel's computation, the balance due under the mortgage, including the notes held by, and foreclosed on by, Miss Nannie Skannal, was $863.52. They add to this sum 10 per cent as attorney's fees, amounting to $86.35, making a total of principal, interest, and attorney's fees of $949.87, which was 13 cents less than the amount the property brought. The costs amounted to $65.65, which amount it was necessary to deduct, thus leaving only $884.35 to take care of the amount due under the mortgage.
Plaintiffs' error lies in the fact that they have computed attorney's fees at 10 per cent on the entire amount due on the mortgage, including the notes held by and foreclosed on by Miss Skannal and the balance due the land bank.
Miss Skannal acquired from the Federal Land Bank two notes of the series, one for $49.75 and the other for $54. The Federal Land Bank transferred these two notes to her with full subrogation of all its rights, including the right to foreclose. She did foreclose on these two notes, which with interest at 8 per cent amounted to $122.71. *Page 111 She claimed attorney's fees, and, conceding that she was entitled to claim 10 per cent to cover such fees, she was entitled to receive only $12.27. If this sum is added to $863.52, the amount due on the entire mortgage, and if the costs, amounting to $65.65, are also added, the total sum obtained is $941.44. Since $950 was bid for the property, there was clearly enough to pay off the prior mortgage.
Under no conceivable theory could attorney's fees on the whole amount, which is not due and has not been foreclosed on, be added to the amount needed to pay off this prior obligation. By "prior obligation" we mean the balance due the Federal Land Bank, which under the terms of the mortgage should remain a first lien on the property sold. Under the precise language of the mortgage, the 10 per cent attorney's fees are due only if "the mortgagee herein, its successors and assigns, or attorneys, see fit to foreclose this mortgage in a court having jurisdiction thereof".
There is therefore no merit in counsel's fourth point, even if it be conceded that, where property is sold under foreclosure proceedings and brings an amount less than is necessary to pay all prior mortgages, the sale is an absolute nullity.
For the reasons which we have assigned in this opinion, plaintiffs' demand that the foreclosure proceedings and the sale thereunder be decreed null and void is rejected. We adhere to our original opinion and now *Page 112 reinstate our decree affirming the judgment appealed from, and make it the final decree of this court.
ROGERS, J., concurs and hands down reasons.
HIGGINS, J., concurs in the decree.
FOURNET, J., absent.