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Opinion of the Court.

to be recognized by our courts in the decree rendered upon such contract. The law has, by express provisions, ordained the mode in which its own officers shall enforce the judgments of the courts." Justices Land and Buchanan held that the right of the debtor to appraisement in case of the forced alienation of his property might be waived by him, and his property sold at the first offer for cash for whatever price it would bring. But they concurred in the judgment of affirmance because "the waiver in such a case must be in a more solemn and authentic form than that of a promissory note, otherwise the waiver would become a mere formula in such instrument, and the entire policy of the law would thereby be defeated, to the injury of both debtors and creditors."

The subject was elaborately considered by the Supreme Court of Louisiana in Broadwell v. Rodrigues, 18 La. Ann. 68, where the question was whether the clause inserted in the act of mortgage there in suit, dispensing with the appraisement required by Arts. 673 and 745 of the Code of Practice, was valid in law. The case turned upon the construction to be given to Article 11 of the Civil Code of Louisiana, providing that, "individuals cannot by their conventions derogate from the force of laws made for the preservation of public order or good morals. But, in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others and is not contrary to the public good." It was contended on one side, that the law requiring the property of a judgment debtor to be appraised before it could be sold by the sheriff in execution of a judgment, is a public law, and that an agreement to waive or dispense with the appraisement is absolutely void; and on the other, that the necessity for appraisement in judicial sales is established exclusively for the benefit of the defendant, and that he may, therefore, validly renounce it under the second paragraph of Article 11 of the Civil Code. The court said: "From the general tenor of our own jurisprudence, we could hardly have deemed this question an open one, for it has been uniformly held that the legal formalities attending final process are

Opinion of the Court.

established by law in favor of debtors in execution, which they can renounce, without in any manner running counter to the proviso in the second paragraph of Art. 11, C. C. The cases to which our attention has been called view the question in all its phases, and seem to consider the progressive steps in the execution of judgment as mere formalities; less a matter of public policy than of private concern, and hence they deem the renunciation or waiver of those rights as permissible under § 2 of Art. 11 of the Civil Code." The prior cases referred to in the opinion as sustaining these views were Mullen v. IIarding, 12 La. Ann. 271; Le Blanc v. Dubroca, 6 La. Ann. 360; McDonough v. Garland, 7 La. Ann. 143; Desplate v. St. Martin, 17 La. Ann. 91, 92, and others. To the same effect are Jouet v. Mortimer, 29 La. Ann. 206; and Soniat v. Miles, 32 La. Ann. 164. So, that the objection that the sale was illegal for want of an appraisement is without any foundation upon which to rest.

But it is said that the Godberrys could not by their agreement with McCan waive appraisement so as to affect Stockmeyer or the vendor's mortgage and privilege securing the notes that had been pledged to him. This contention, it is supposed, finds support in Article 2078 of the Revised Civil Code, providing that "several obligations are produced, when what is promised by one of the obligors is not promised by the other, but each one promises separately for himself to do a distinct act; such obligations, although they may be contained in the same contract, are considered as much individual and distinct as if they had been in different contracts and made at different times." To this suggestion it is sufficient to answer that the right of appraisement is given by the statute to the owner, and its waiver by the Messrs. Godberry was not a matter of which creditors could complain, unless such waiver was made fraudulently or to defeat their debts, as in Lawrence, Syndic v. Young, 1 La. Ann. 297, 299; certainly not one of which any creditor could complain who intervened and became a party to the mortgage dispensing with appraisement.

It is also said, that in the writ commanding the sheriff to seize and sell, he was required "to seize, and, after the legal

Opinion of the Court.

delays, to advertise and sell, according to law;" and that as he was not directed to sell without appraisement, he could only sell in the mode prescribed by the statute, that is, upon appraisement. Union Bank v. Bradford, 2 La. Ann. 416, is cited in support of that proposition. That was an action to annul a sale of land under execution by the sheriff. The mortgage, given by the defendants, contained a clause authorizing a sale "for cash, without appraisement." In the petition praying for the order of seizure and sale, no reference was made to this clause, and the right to sell without appraisement was not claimed. The prayer was for an order that the property be seized and sold "as the law directs," etc. An order of seizure and sale was directed to be issued, "as prayed for," and that the property be sold "as the law directs." Under this order, the clerk issued the writ, directing the sheriff to seize and sell for cash, without appraisement; and the sale was so advertised. The court said: "It is manifest that the sale was not made in conformity with the order of the judge. The stipulation in the act of mortgage was one made for the benefit of the plaintiffs, which it was discretionary with the bank to have enforced or to renounce. It was virtually waived by claiming a seizure and sale according to law, the true intendment of which is, that the proceedings were to be in conformity with the rules which govern seizures and sales under executory process. The order was in accordance with the prayer of the petition, and no sale could have been legally effected under it, without observing the formalities required in ordinary cases under executory proceedings, one of which is, that the property shall be previously appraised. The clerk was not authorized, under the order granted by the judge, to direct that the sale be made without appraisement. His act was null, and conferred no authority on the sheriff to dispense with the observance of a formality which was so essential, as the result proves, to the protection of the plaintiffs' rights." The facts here are entirely different from those in the above The petition of McCan for executory process asks that the mortgaged property be seized and sold for cash to the highest bidder, "without appraisement and according to law."

case.

Opinion of the Court.

The order upon the petition was, "Let executory process issue herein as prayed for and according to law." The writ of seizure and sale directed the sheriff "to seize, and, after the legal delays, to advertise and sell, according to law, to pay

and satisfy in cash the claim of the plaintiff," etc. The writ, it is true, did not in terms require the sale to be made without appraisement. But the omission was not one of which Stockmeyer could complain after intervening in the special mortgage to McCan; certainly not unless he showed special injury to his rights. Besides, we think, in view of the petition and order for executory process, the words "according to law" in the writ imported a sale in accordance with the stipulations of the mortgage and the prayer in the petition, namely, without appraisement. There is no ground to say, as in the case in 2 La. Ann., that the mortgagee, by his petition, or in any other mode, waived his right to a sale without appraisement and asked a sale under the statute with appraisement.

Another question is, whether the sale was invalid by reason of the entire property having been sold, in block, at the seat of justice, and not, as to any portion of it, on the plantation. By Article 664 of the Code of Practice it is provided that the sale of the property under a writ of fieri facias "must be made by the sheriff at the seat of justice for the parish where the seizure is made, and he shall choose for the place of sale the spot where it may have the greatest degree of publicity, except in the cases enumerated in the following articles." Art. 665: "In the country, the sale may be made on the plantations which are to be sold if the debtor require it; but in this case notice must be given of the fact in the advertisement of sale." Art. 666: "Animals and utensils attached to plantations and manufactures, and such articles as cannot be easily removed, must be sold on the spot where they are taken, on the day and hour appointed for this purpose by the sheriff." Art. 676: "The effects seized must be appraised with such minuteness that they may be sold together or separately, to the best advantage of the debtor, as he may direct."

Now, the objection as to the place of sale is fully met by Walker v. Villavasso, 26 La. Ann. 42, 44, (decided in 1874)

VOL. CXXXIX-13

Opinion of the Court.

where the court, after quoting Article 666, said: "The two preceding articles [664, 665] provide that sale of the property must be made at the seat of justice, but in the country it may be made on the plantations which are to be sold, if the debtor require it, of which notice must be given in the advertisement. These articles must all be construed together so as to give effect to each. Where a plantation and its fixtures are to be sold under a mortgage, as in this case, the sale must be made at the seat of justice, unless the debtor require it to be made on the plantation. It is not intended that the articles attached to the plantation and which are mortgageable shall be sold in one place and the land in another. Under the writ of seizure and sale all are seized and sold at one time and place." And, perhaps, that the privilege given to the debtor might not be abused, the general assembly, by the act of March 2, 1876, relating to sales by sheriffs and coroners, Laws of La. 1876, p. 50, declared that nothing therein contained "shall deprive the defendant of the privilege now enjoyed by him of having his property, when it is under seizure, offered for sale at his domicil upon his giving notice to the proper officer within three days after seizure." The necessity for this limitation as to the time within which the defendant must indicate his wishes as to the place of sale is shown by the occurrences in this case. The petition of McCan was filed and executory process directed to be issued on the 15th of January, 1885. Notice of demand and service of copy of petition were waived by the debtors January 19, 1885; the seizure was made January 27, 1885; the sale was advertised January 31, 1885, to take place March 7, 1885, the advertisement stating that the plantation and the personal property attached to it, and used in its cultivation, would be sold for cash at the courthouse of the parish; and a copy of the petition of protest by debtors, with the accompanying affidavit, and the order of the judge of the 22d Judicial District, requiring the plantation to be sold at the court-house, and the other articles at the plantation, was not served on the sheriff until March 5, 1885, three days only before the day on which the sale was to occur according to the advertisement. It thus appears that, in any

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