Fontelieu v. Fontelieu

Citations

• 116 La. 866
• 41 So. 120
• 1906 La. LEXIS 590

Syllabus

<p>1. Execution—Sales — Title of Purchaser' —Proof—Secondary Evidence.</p> <p>To establish a title as derived from a sale by the sheriff, one must show a judgment rendered by a court of competent jurisdiction, a writ issued in conformity thereto, and a sale by the sheriff pursuant to the writ; but, where the original records are shown to have been lost or destroyed, the existence of those elements, or either of them, may be proved by secondary evidence.</p> <p>2. Same—Petitory Action—Evidence—Sufficiency.</p> <p>Where, after a lapse of nearly 30 years, the plaintiff in a petitory action, in support of a title derived from a sale under execution, proves the loss of the record in which^ the execution issued, produces certified copies of a judgment against the former owner of the property, and a sheriff’s deed, both from the books in which said copies are required to be made, and produces the clerk’s - “charge docket,” showing the issuance of a writ of fieri facias, as of date corresponding with that recited in the sheriff’s deed, and there is nothing to suggest any want of jurisdiction in the court or irregularity in the proceedings, the title will be considered established.</p> <p>3. Mortgages — Foreclosure — Judgment Authorizing Sale—Title oe Purchaser-Prescription—Color oe Title—Estoppel.</p> <p>The commercial firm of A., B. & C., through A., one of its members (whose authority does not appear), purchases, by notarial act, certain real and personal property from D. who retains a mortgage to secure a portion of the price, and E. intervenes in the act and grants a mortgage containing no pact de non, etc., on property belonging to her, as further security to D. Nine years later, and after the time has elapsed within which the payments under the original contract were to have been completed, judgment is rendered, in a suit entitled “D. v. B. et.als.,” upon the confession of the “defendants” (in which, however, no other defendant than B is named), condemning the “defend