*861Same -Case — On a Re-Hearing.
Tits .formalities prescribed by Jaw,.were not observed in ,the proceedings .on .which the defendants base their titles to the .land sued for. The first seizure under the judgment of John,, and ¿Leonard. B. .Compton against die heirs of I. H. 'Robinett, was made on the 30th April, 1819, .and the property offered for the first time on the 2d June following, leaving but .thirty-two clear days, when .there should .have been at least thirty-four. In reference to the proceedings under this execution, the court say that “the sheriff does not say on what day ■he set up the advertisementthat ■“ there were .more than thirty days between the seizure and,day,of sale” (of the first exposure -must.be meant), and .that,an,advertisement agreeably to law must be presumed in the .absence of proof .to the contrary. This presumption is contradicted by the return, if it ■was.reguisite to¡give notice.of seizure, and,allow for it a delay of three.days, in addition to that required for advertising. W.e think the act of 1805 clearly requires both the notice and.delay. Under the second execution against thedieirs of Elizabeth Robinett,seizure and advertisement .were both made on the 25th March, 1822. Under the first writ against the same parties, the seizure was made on the 3d-October, .-1821, and the advertisement.on-the next day. Josiah S. Johnston and .John P. McNeil derived their title frqm these sales. Ji.andD. B- Compton,acquired ¡title to-the land.they hold under a sheriffjs sale, .made in obedience to a second writ of fieri facias, issued under,their judgment. Under this writ.the land was .advertised on the 3d of August, and.exposed to sale for .the first time on the 2d .September .following, not allowing thirty clear days. See McDonough v. Gravier’s Heirs, 9 La. 545. The-court, in the opinion pronouced in this case, •and the.counseljor the defendants assert, that the .practice of excluding the day ,of advertising and the day of sale .was introduced under the Code of Practice. We are unable to discover any foundation for this position in the words of the .article of the Code of Practice, whenqompared with those.of the act of 1817 on •¡the same subject. It is impossible to reconcile the language of the act with a ¡sale on the .thirtieth day ; a proposition not equally obvious in reference to the ,670th article C. P. The language.of the act, sem 14, is that •“ no sale” of immovable property shall be made in less than thirty days from the day of advertising. The word “from” in its universal acceptation excludes entirely the .thing to which it is applied. Exclude then the 3d of August, and it is impossible that a sale on the 2d September should not be in-less than thirty days. There .cannot intervene between the two periods more than twenty-nine days anda .fraction. The article referred to (C. P. 670) provides that the sale of immova,-bles can be made “.only thirty days after the notice” of sale. Now asale made ,at 1 o’clock, P. M. of the 2d September, would be thirty days after a notice .given at 12 o’clock of the 3d August. If the court and.the counsel meant sim,ply to state a historical fact, we reply in the words of the decision pronounced ,ia Vignaud v. Tonnacourt, “ practice is never permitted to control the law.” This suit was brought, May 3d, 1825. Previous to its institution it had been .decided, in Vignaud v. Tonnacourt, 12 M. R. 229 ; in Dupey et al. v. Griffin, 1 Mart. N. S. 198, and -in several other.cases, that Probate courts had exclusive jurisdiction of all claims against successions. The correctness .of, this decision lias been recognised in every subsequent case in which the same question has .been raised. In the case of Tabor v. Johnson, however, it was decided that sales were not void which were made under the authority of judgments against .successions pronounced by courts of ordinary jurisdiction, notwithstanding the incompetency of these tribunals. This decision was pronounced in June, 1825, and has been followed in every similar case ever since. 3 Mart. N. S. 674. In this case we find the following passage : “Allowing to the Courts of Probate exclusive jurisdiction in causes which appertain to estates administered by persons deriving authority from them either directly or indirectly, a question then arises whether this exclusion of the court of ordinary jurisdiction exists absolutely,-ratione materia, ov rations'persona ? We are inclined to-think that the exclusive jurisdiction depends more upon the peculiar situation of the parties than on the subject matter of dispute, perhaps somewhat on both,” p. 683.-In these two sentences-we have the grounds of the determination in that case, and in all-of those which have followed- in its wake. The question would have been more fairly stated, if instead of “ exclusive jurisdiction in causes apper-’ tainingto estates &c.” the court had said “ exclusive jurisdiction of claims for money brought against estates,” for such is the nature of the case. Upon this subject we submit the following points: 1-. The judgment of a court incompetent roÁione persona is null ipso jure, if the objection to its incom-potency either has not been, or cannot be waived. 2. That District courts are without jurisdiction, -ratione materia,-of, suite to recover debts from succes-sion. 3. That to be without jurisdiction of claims against successions, is to be incompetent ratione materia, and' it is unimportant whether the incompetenoy depends more on the peculiar situation of the parties or on the subject-matter' of dispute. 4. That in fact the incompetency o-f oourts of'ordinary jurisdiction in the cases referred to, does not depend more upon the situation of the1 subject matter than of the parties, if- not entirely upon the former. The will of the legislature is equally law,-and confers and revokes-powers with! equal efficacy, whether arrived at by implication or learned from express language. Doubts may exist in one case, which would not arise in the other, in re-lation to the intention of the legislature, but when that intention isrclearly perceived, it must regulate the action of the court aud settle the rights of the citizen, although ascertained in either mode.- If, as-is admitted in the case of Tabor’ v. Johnson, there are provisions of the Code of 1808 inconsistent with the cognisance of claims against successions by the courts of ordinary jurisdiction, these tribunals are divested of all power to adjudicate upon such claims as effectually as they could be by an express prohibition. That Code (p. 1-7-8, art. 137)' provides, that curators of vacant estates shall not proceed-to the payment of the debts of the estate until they have obtained the authorisation of the parish judge. , This is not impliedly but expressly forbidding, the payment of these’ debts, in-obedience to the order of any other than the parish judge, and is virtually declaring that no other judge shall have the power to order their payment- or authorise the sale of property to effeot it. It is well- settled that- this pro-vision is equally applicable to the representatives of estates not vacant. 1- Mart-. N. S. 198. 3 Mart. N. S. 628, 674. Let us suppose, then, that prior to the judgments on which the defendants-base their title, the legislature had enacted,- in the language of our Code of Practice,-that “oourts of Probate shall have the exclusive power to decide on claims for money brought against successions, &e.” The case would be in-substance the same as that now before the court.- I. The exclusion of District courts from the cognisance of claims against successions, was not designed as a personal benefit to those who had them in charge. The legislature could not have intended to make it optional- with administrators &c. whether claims against successions should be decided upon by District or Probate courts. The considerations which required that the settlement of the estates of deceased persons should be eonfined exclusively to Probate courts, are altogether irreconcileable with the investment of such a discretion in the representatives of such estates. In Dupey v. Griffin’s executors, the court said that, “ heirs with benefit of inventory cannot by consent take away from courts of Probate their jurisdiction.” 1 Mart. N. S. 200. See also Debuysv. Yerby, 1 Mart. N. S.-381. The omission then of the plaintiffs’ tutors to except to the competency of the courts which pronounced the judgments relied upon by the defendants, cannot contribute in the slightest degree to the validity of those judgments. The case before the court differs in no material respect from what it would be if the exceptions had been formally taken in limine litis. The validity of this objection has been recognised when made for the first time before the appellate tribunal. See 1 Mart. N. S. 381. Jurisdiction is the power of him who has the right to judge. C. P. 76. See 6 Peters,-709. This includes tile po-wer to confer upon the-party, hi whose-favor judgment may be rendered, a right'to-the money adjudged to be due m him — the right to seize and sell the property of the unsuccessful party to satisfy the judgment. The want of jurisdiction is-the want of power to hear and determine the cause — ;the want of the power to authorise a sale of property to satisfy the judgment that may be pronounced. That this is a correct statement of the legal consequences of the want of jurisdiction, so-far as this case is concerned, will not be denied, and its truth is wholly independent of the question whether the incompetency is ratione personce or ratione materia. District courts then are without the power to pronounce judgment against successions, and-consequently to authorise the sale of effects belonging to them. The sales, therefore, under which the defendants acquired-title to the land sued for were made without the authority of the law. Would not the law be inconsistent With itself to-recognise as valid that which is done without its authority, and even-against its-prohibitions ? for the interference of District Courts- with successions is impliedly, if not expressly, prohibited by the provisions of the Code of 1808, already cited. The sentence of a judicial tribunal derives the force of a judgment solely from the legal power to pronounce it. The only difference between the two kinds of incompetency, on- account of the person and on account of the subject matter, is, that a waiver of the former will sometimes cure the defect, whilst that of the latter never will. But if the former is not oi> cannot be waived, the effect must be the same, that is, the want of power to judge, the want of power to authorise a sale to satisfy a judgment. The sole reason-why consent- will not render valid the judgment of a court incompetent ration# materia is, that such consent cannot give jurisdiction-. The ultimate, the only cause of the nullity of such ajudgment, is the want of legal authority to pronounce it. This want of authority or jurisdiction may be the effect of different causes, but it is itself the cause of the want of validity in-the judgment. In Leonard v. Mandeville, 9 M. 4.89, it was- decided that a sale of land, authorised by a probate judge, was absolutely void, because the minor to whom the landblonged, as well as his tutor, was domiciliated in a different parish from that in which the order of sale was made. The ineorapetency in this case was clearly on account of the person. The-court say in that case, that- “ the whole proceedings are coram non judice, and therefore void.” In 1 Mart.-N. S. 381 the court-uses precisely the same language in reference to a suit against-a succession brought in the District Court coram non judice, and why not the same conclusion? II.- A oourt is said to be incompetent ratione persona when the defendant- is not subjeot to its authority, and incompetent ratione materia when it has not the power to adjudicate upon the subjeot matter in dispute. Nowin every case in which the question has arisen, it has been admitted that the ordinary tribunals have been excluded from jurisdiction of claims against successions. The claim is a debt, the subject matter itself of the suit, and to be without jurisdiction of the claim- made in a suit, is to be incompetent ratione materia. It is travelling beyond the proper limits of the inquiry to investigate the reasons why the court is divested of jurisdiction of the claim. The error we are combatting seems to have arisen from applying the phrase ratione materia to the subject matter of the suit, instead of the suit itself or cause. In the former sense it is tautological. III. The exclusive jurisdiction of the courts of Probate of suits brought to recover money from successions does depend principally, if not entirely, upon the subject matter in dispute. The case of Vigncmd v. Tonnacourt, (12 M. 229), is the first in-which the question was raised, whether District courts could take cognisance of suits for debt against successions. Itwas decided against the competency of the tribunal, and the grounds of the exclusion are set forth in detail, but not one of these appertain to the “ peculiar situation of the parties.” All are applicable to the subject matter of the suit. In the opinion already pronounced in this suit id is said,- that “ the case of Vignaud v. Tonnacourt” just cited, “was the first that came up after the act of 1820.” The court would seem to intimate by this language that this act was the ground of the determination in that case. If they do, they overlook the fact that the act of 1820 is not once alluded to, and that the decision rests entirely upon the provisions of the Civil Code of 18U8. In the passage quoted from Tabor'v. Johnson, the court admits that the exclusion depends both on the peculiar situation of the parties and of the subject matter in dispute. Should not the conclusion, even upon its own principles and mode of reasoning, have been that the exclusion was both ratiorie materia aniralio-neperso7ina? The suggested conclusion would not be the less true, if the grounds of the exclusion which relate to the parties were more numerous or more important than those which apply to the subject matter. It is not necessary to resort to the doctrines of nullity to determine whether an- act, done without the legal power to do it, can have any legal effect. If, however, they are appealed to, they will furnish no support to the position,- that the judgments of courts without jurisdiction- are valid until rescinded m an action brought.for that purpose. The nullity by which they are vitiated is a nullity ipso jure, and not one byway of action. The principal distinction between-them is, that, the former is extrinsic and apparent, and therefore may be perceived on simple inspection ; the latter on the contrary is concealed, and cannot be discovered without an investigation and the introduction of evidence extraneous to the instrument or proceedings which are vitiated by it. Such are error, fraud, violence, &c. Acts or proceedings, therefore, which are tainted by this species of defect, are held valid until declared void by a competent tribunal. The law recognises no object of a trial but the discovery of facts. Is-it not, then, absurd to contend for the necessity of an action, when there are no facts to be ascertained ? The extent of the powers of a tribunal is a question of pure law. The incompetency of a court is a radical and apparent vice, and its judgment is therefore stricken with nullity ipso jure. 7 Touii. pp. 6-14, 615, l). 521. In connection with the question of jurisdiction, the rule stare decisis will be invoked and relied upon by the counsel for the defendants. This will be a safer course than to attempt to show by a legitimate deduction from just premises, that the decisions which they will cite against ns are correct. The true office-of this rule is to incliue the scale of judicial opinion when balanced by doubts. In Vignaud v. Tonnacourt. 12 M. 231, the court say, “ if our inquiries bring us1 to the result that the action cannot be maintained, the usage under the statute ought not to affect our decision, as practice is never permitted to control the law, though in doubtful cases it may serve to explain it.” If the court, after an investigation of this subject, should still be in doubt, we expect a decision against us. But if it should appear clear to them, as it does to us, that the property oí the plaintiffs has been sold without the authority of any tribunal having legal power to authorise its sale, an adherence to the decision in 'Tabor v. Johnson, and those which have followed it, would bo sacrificing, to a comparatively subordinate rule, principles entitled to much higher consideration in the administration of justice — -would, in other words, be awarding the property of the plaintiffs to the defendants, in order to preserve judicial consistency in error. If the property, sought to be recovered in this case, was sold under the authority of a court without jurisdiction, the title must still be in the plaintiffs (9 M. 489), and we think itthe most imperative, the most sacred of all judicial obligations, to award the property in dispute to the party to whom it belongs. We do not think it comes within the legitimate scope of judicial power, or of judicial, legislative, and executive- combined, to give one- man’s property to another for any purpose whatever. O. N. Ogden, and H. A. Bullard, for the defendants. I. The defendants show judgments, executions, and sheriff’s sales, covering all the property claimed by them. These proceedings were regular, and create valid titles. 16 La. 554. 8 La. 423. 9 La. 592. 19 La. 309. 2. The judgments under which all the sheriff’s sales were made, are not appealed from, and have acquired the force of the tlilDg adjudged. 11 M. R. 607. 3. The District Court had jurisdiction of the suits against the widow and heirs of I. H. Robinett, ratione materia, and no exception ralione persona was pleaded in limine litis, as it ought to have been, to have any effect. No such exception having been made, the court was obliged to decide the matters presented before it by the contesting parties, and its judgments are valid and binding. 8 Mart. N. S. 241. 3 Mart. N. S. 676. 6 Mart. N. S. 548. 9 Mart. N. S. 378. 4. By appearing, and contesting these suits, as heirs of J. H., and Elizabeth Robinett, on the merits, the plaintiffs rendered themselves personally liable for their debts, and are bound by all their acts. Code of 1808, p. 162, arts. 96, 97. 2 Mart. N. S. 475. 5. The validity of the judgments under which the sheriff’s sales were made, cannot be attacked collaterally. ■ A direct action ought, to'have been brought. 16 La. 440. 11;Mart-607. 2 Mart. N. S.- 292. 2 La. 190- 6. As to the objection that in some of the sales relied on by the defendants, there were1 not allowed thirty days, exclusive of the day of advertising.and the day of sale, we say that the rule for excluding both was introduced by the Code of Practice, long after these sales were made. The rule which prevailed at the date of these sales, was to exclude one day and include the other, and this will give all the delays required. As to the objection that the property did not sell for the amount-of the mortgage to Clements, we reply: 1st. That the amount of this mortgage debt, ascertained to be due by the judgment of 1-he Heirs of Clements v. The Heirs of Rohinett, was only §8,593 40, all of which was paid by the sale of other property. 2d. That the plaintiffs brought their suit on two grounds of nullity in the alienations made of their property, to which they ought to be confined, to wit: that the property was not sold for its appraised value, and that it was not sold by the Probate court. 3d. That the heirs of Rohinett, when sued on the mortgage given by their ancestors to Clements, alleged that nothing was due thereon, and they-ought not now to be permitted to argue, against their plea in the suit referred to, that the whole amount was due. 4th. That no issue should be permitted-in this court, which was not raised in the court below, and which, if it had been there raised, might have been met with proofs from the defendants. In the lower court, the case turned entirely upon the two questions raised by the plaintiffs, the duly questions raised by then), as to- the legality of a sale of their property-for less than its appraised value, or by- any other authority than that of a decree of-the Probate oourt- If those sales are now to be set aside on grounds never dreamed of until the argument before this court, the most ancient titles in the State will prove the most insecure, because the practice under which they were acquired, in all oases of forced alienations, was precisely that under which the defendants olaiin.The-judgment of the'court was pronounced by
Eustis, C. J.This case was decided by the late Supreme Court, in Octo«b'er, 1844, in favor of-the defendants, in affirmance of the judgment of the court of the-sixth district, which was rendered in 1825. On the application of the plaintiffs a re-hearing was granted,-on one point only, and for the benefit of the defendants, McNeil, the succession of Johnston, and the' Comptons, the judgment being considered as final as to the other parties, against whom no rehearing was asked, Under the view which the eourt took of the case, a-question arose-as to the validity of certain sheriff’s sales under which the defendants claimed, and the point- on which the re-hearing was granted is thus stated by the counsel applying .fur it :
“'That all the property sued for was, at the time of the respective sales under which the defendants claim, subject to a special mortgage in favor of H. Clements’ heirs for the sum of §60,000, and the price bid at none of said sales was sufficient to satisfy the same.”
It is urged that this mortgage had a preference over that of the judgment creditors, and that the property seized was not sold subject to the payment of it, and that the price for which the property was adjudicated not being sufficient t.o satisfy the amount there was no sale, and the property remained undivested in the original proprietor. The proceedings under which the sales were made were regulated by the laws which were in force-previous to the enactment of the Code of Practice, in 1825. The mortgage creditor having been paid by subsequent sales of other property, included in the mortgage, or subjected to the payment of his debt, and never complaining that the sheriff’s sales in the manner they were made caused him any detriment, nor objecting to the application of the proceeds to the extinguishment of debts other than that which was secured by the special mortgage, deprives the plaintiffs’ demand to set aside *867tho sales, of all foundation in equity. Though the apparent encumbrance was for the sum of $60,000, the debt had been reduced by payments, and, at the time of the sales, did not amount to one-sixth of that sum, and the creditor,-being perfectly secure, had no interest in preventing another creditor, though having a subordinate mortgage debt,.from being paid by a sale of a portion of the .property mortgaged. The question - which we-have-to decide is, whether sales under those circumstances, without any collusion or fraud which -we are able to ■detect, can be declared-void at the instance of the debtor, under tho jurisprudence which prevailed at the time they were made.
It appears that there was a good deal of difficulty.in carrying into effect the provisions of an act of 1817, which was then in force concerning-sheriff’s sales. In the case of Balfour v. Chew, 4 Mart. N. S. 163, the-statute -underwent -a thorough examination by the court, after having been-several limes under consideration in previous cases. The court, in giving their judgment in Balfour’s case, say: “ Although such,-in our opinion, is the true meaning of the provisions on this subject, a question of infinitely more-importance in the decision of this cause arises, and that is, how must this bid be made ? Must it be for tho entire value, with the obligation to pay the previous mortgage out of it, or will It be sufficient to bid the value over and above the mortgage,-subject to its payment? -We think either mode will -meet the requisition of the act. The statute provides that the sheriff, or other public officer making the sale, shall only receive from the purchaser the surplus for which the property shall have been sold over and above the amount of the-special mortgage. -On bidding the whole amount, then, no money is paid but that which remains after satisfying the mortgage. In bidding the surplus over the mortgage and with-the obligation to discharge it, he only makes the deduction before the sale-which'he would and must make after. Any other construction, it appears to us, would be substituting words for things. There is-no real difference between buying a thing for $3,450, to be paid the seizing creditor, with -an obligation to discharge a -previous mortgage for $6,000, or purchasing it for $9,450, $6,000 of which is to be retained to discharge that mortgage, and the balance to be paid to the creditor at whose instance the sale is made. The sum to be paid is the same; the time of payment is the same; the persons to whom the money is to be paid-is the same ; and the law, in presuming the validity of the contract, must be the -same, unless it overlooked facts in pursuit of verbal distinctions.” We consider the sales ■under examination as having been made for the entire-value, the price to have been, comprised in one sum, with the assent of the mortgage creditor as shown by his-subsequent acts, by the execution of the sale, by the delivery of the property sold, and the appropriation of the proceeds to the extinguishment of the judgments under which they were seized.
There is a previous decision in which a contrary doctrine is apparently recognised. De Armas v. Morgan, 3 Mart. N. S. 606. A careful consideration of that case rather fortifies the conclusion to which we have .come. The nullity of the sheriff’s sale was decreed in the interest of the mortgage creditor. The sheriff was the nominal party who represented all interests. The court in that case, say: “ It is of the essence of every sale that there should be a price received, or to be received, by the vendor. Now, in the present, caso, whether we consider the plaintiff in. the fieri facias, or the sheriff, as tho vendor, there was.no price received, orto be received, .by either. The mortgage creditor cannot bo considered as the vendor, nor the sheriff his agent, for the sale w-as *868made without his participation, consent, or even knowledgo. If thelawinter^ered with his mortgage it could only be after securing his payment, and the present sale compels him to be satisfied, if it has any effect, with a part of his ■claim.” In the present case as there was a price, and that price was paid in its appropriation to the reduction of tho judgments, and the interests of tho mortgage creditor have not been injured, who must be considered as .assenting to tho appropriation, we cannot pronounce the sales to' be void -under the established jurisprudence of the times in which they were made. No authority has been shown, nor reason given,-on which such a conclusion can be based.
This is the only point on which there-hearing was granted, and it is .a question whether we are at liberty to consider the case as open on.any other points. Lawrence v. Young, 1 Annual Rep. 298. We consider it as one rather of ju-dioial propriety, than of power. But it is obvious that a very grave and palpable error must be made out, to authorise our interference with any matter which the previous court has decided, in a case under its own control.
Ihe other point made by the plaintiffs in their petition for a re-hearing, on •which no re-hearing was granted, was this: That in making said sales the formalities prescribed by law were not complied with.
The property referred to was not sold on the first advertisements, not bringing two-thirds of its appraised value, and was offered, after the usual notice, for ■sale at twelve months. The informality complained of is, that thirty days were not allowed from the day of the first advertising, in the advertisements of the ■first proposed sale, which preceded that of tho adjudication, which was made to the defendants, the Comptons, on the second offering. In relation to this the ■ court considered that the formalities of law were complied with, and that the -time allowed was sufficient, and state as a fact that the rule of computation then -existing in relation to time, was to.exclude one day and include the other. It is admitted to-be different since the Code of Practice. From the briefs before ms, it appears, that this question was fully argued, and the prevalence of this mode of computing the tetra in sheriff’s sales was asserted by the counsel for the defendants, .in his brief, to be universal, before .the adoption of that Code. .-By virtually refusing a re-hearing on this point, the court has again affirmed the existence of this rule. As.it relates to a matter of practice under laws no .longer in existence, with which that court is presumed to be familiar, ,we do not .feel authorised, at this .late day, to call it in question.
Without being called upon to concur in, or dissent from, any other portion of .the opinion of-the.late Supreme Court, we can state that we consider the defendants’’rights as resting exclusively on their subsequent purchases at sheriff’s sales, and deriving no effect from the pretended sale from Nelson Robinelt to L. B. Compton, of date the 19th January, 1818.
The judgment in this case stands affirmed.