Michel v. Her Husband

The judgment of the court was pronounced by

Slidell, J.

The record in this case exhibits a mass of confused and irregular proceedings, which we have carefully examined, but shall not undertake to detail in full. We shall refer only to such of them as are necessary to the decision of this controversy.

It appears that in the suit of one Roy against Michel, the present plaintiff’s husband, judgment was obtained against Michel, and an execution issued, under which a slave of Michel's was seized and sold by the marshal of the City Court. Pending the seizure, Mrs. Michel obtained a judgment against her husband, with mortgage and privilege for dotal rights, which judgment was registered before the marshal’s sale. The return of the marshal upon the Ji.fa., and his deed, exhibit an adjudication ol' the slave to Roy, the plaintiff in the execution. But it is shown that in reality the bid was made by, and the adjudication was made to, A. Dreur, professing to act for account of Roy, who was not present, and is not shown ever to have authorized Dreux to make the purchase. The price of the adjudication was $510. The marshal’s return and his deed both declare, after reciting the certificate of registry of Mrs. Michel’s judgment, that, the purchaser (Roy) has retained in his hands the sum of $493,80, the amount of the privilege existing on said slave in favor of defendant’s wife, in order to meet the payment of the same, the purchaser paying the balance to the marshaj 'in ready .money. It is admitted by Dreux that, since the sale, the slave has always been out of Roy’s possession. It is proven clearly and conclusively by the sherifi" of St. Bernard, where Roy lives, and to which parish Mrs. Michel had subsequently issued an execution, that, upon application being made to Roy for, the slave, in order that a seizure might be made under the writ, Roy answered that he knew nothing, and never had known anything, about the slave; that Dreux had bought the slave, but that he never gave Dreux any authority to do so; that if he, Roy, had the slave, he would deliver her up to the witness under the writ. This testimony was, in onr opinion, improperly rejected; it did not contradict, nor vary the sheril'f’s return. These facts wore independent of the return. The return was that no property of Michel's could be found in the parish of St. Bernard. That, this return is made by tho slierili' himself, is not inconsistent with the fact of the witness having acted under that writ as his deputy.

After a year had intervened, the plaintiff at last found the slave in New Orleans, and caused her to be seized and advertised for sale. This seizure was made, in October, 1844. The slave was sold, in Becembor, 1844, to Mrs. Michel. Pending the seizure Dreux filed a third opposition, in which he alleges the slave to be his property, by virtue of a purchase from Roy, made in November, 1844. He alleges also the marshal’s sale to Roy, and that Roy’s title and his own cannot be treated as a nullity. He prayed that the slave might be delivered to him.

The court below was of opinion that the plaintiff' should have instituted an hypothecary action, or an action of nullity. We think the court erred.

The testimony of the deputy sheriff is unimpeachcd. Roy’s conduct and declarations on that occasion were a sufficient authorization to the plaintiff, so far as Roy was concerned, to seize the slave wherever it could be found. It was a waiver of the alleged necessity of the hypothecary action. This course was very natural on the part of Roy, who had been made, without his authorization, the purchaser of property incumbered to nearly its full value, and with the probable prospect of the expense and trouble of a litigation. On Roy’s assurances the plaintiff acted, prosecuted her search for the property, and at last discovered and seized it. If Roy had himself interfered to arrest the sale and set aside the seizure upon this technical ground, we should have rejected his claim as inequitable. But does Dreux stand in a better ’position ? Clearly not. ITe expressly claims as the vendee of Roy. But his purchase is made after the plaintiff’s seizure. It was made, as we must believe, with a full knowledge of the seizure. It was made with full notice of tire superior incumbrance in favor of the plaintiff', which is expressly recited in the sale to Roy, wherein Dreux undertook to act for himself. It-is clear that Dreux, thus purchasing after the seizure, cannot maintain an opposition which his vendor would not have been permitted to maintain. In view of all the circumstances of the case we consider the interference of Dreux unlawful; and that it is time that this expensive and protracted contest should be closed.

Greiner, for the appellant. Barthe and C. Janin, for the opponent, Dreux.

It is therefore decreed that the judgment ofthe Parish Court be reversed; that, on the opposition filed by A. Dreux, there be judgment in favor of S. Duchemin, wife of Michel; and that the appellant, A. Dreux, pay the costs of said opposition in the court below, and also of this appeal.