[184]

the defendant, and bound himself to the | made after the right to the same had expired,
stipulations contained in it; that defendant and not by the defendants in the writ, and
refused to make the loan unless the holders the sheriff was not bound to comply with
and owners of the two notes of $8,750 each, any such notices; that it would have been
which were outstanding and secured by first irregular and illegal to have sold a part of
mortgage on the plantation, would consent the property at a place different from that
to give his mortgage priority over them; that named in the notice of sale; that the protest
by said stipulation the plaintiff postponed was presented to the defendant on the day,
his rights of mortgage in favor of the de- and only a few minutes before the time ad-
fendant; that the protest and petition filed vertised for the sale; that as the plantation
by the curator in case No. 197 shows that was on the opposite side of the river, ten
Stockmeyer became a party to the act of miles from the seat of justice, the plaintiff
mortgage and crop lien for the purpose of knew that compliance with the protest was
waiving his claim as holder of said two impossible; that the judge who granted the
notes; that prior to, as well as on, the 25th order directing the sheriff to sell according
of January, 1884, he was engaged in and to the terms of the protest had no power to
transacted business in New Orleans, ap- grant the same; that the petition upon which
parently in the full enjoyment and use of it was granted did not pray for process
all his mental faculties, and defendant had against the sheriff or the defendant, nor has
no reason to believe that they were, in any any been issued or served, and the suit has
degree, impaired by insanity, or from any not been prosecuted in any manner to final
other cause; that the defendant has no knowl- judgment; that such order decided nothing
edge or information as to his having lost between the defendant and the complainant
his capacity to attend to business and manage that ought to affect the sale; that the plan-
his affairs, or as to whether his mind was tation, mules, machinery and implements
seriously impaired so as to affect his under- thereon constituted an estate complete for the
standing and judgment; that defendant was purpose of cultivating sugar cane and manu.
not intimate with him, having had only facturing its products, and it was more val-
casual intercourse with him, but from the uable as a whole than it would have been if
fact of his attending to business, he believed sold separately in the manner set forth in the
him to be in his right mind when the mort- protest; that the amount due him, on the day
gage and crop lien were executed; that on or of sale, for advances, was $20,707.39, with
about September 27, 1884, his curator agreed legal interest from January 10, 1885; but
and consented to defendant's making further that the property was sold for only $15,000,
advances to the plantation over and above leaving a large balance due him, which re-
the $25,000 secured by the special mortgage mains unpaid, together with accrued interest.
of January 25, 1884; that no infirmity of
intellect upon the part of Stockmeyer was
suggested by the curator in the petition and
protest filed to prevent the sale of the mort-
gaged property; and that if the curator had
given notice of his purpose to repudiate the
stipulation in the act of special mortgage on
the grounds now urged, the defendant would
not have made the advances he did, nor
would he have sold the property in dispute,
if the claims now put forward had been made
known to him.

The answer also alleges that the sale of the mortgaged property by the sheriff, under executory process, was in all respects legal and valid; that it was competent for the mortgagors to make the waivers embodied in the mortgage, and the mortgage having been signed, he consented to its terms and conditions, and is bound by them; that the mules and other personal property covered by the special mortgage, and not sold on the plantation, were used in the cultivation of the plantation, were attached thereto and were immovable by destination; that the sheriff had advertised the same, together with the plantation of which they formed a part, for sale, according to law, at the seat of justice of the parish; that the petition and protest of the plaintiff, who was joined therein by Laura Godberry and Noelie Godberry, were filed long after the seizure and date of the first publication of the notices of sale, and was not a demand for a sale of the seized property, or any part thereof on the premises, but, if it be so construed, it was

The defendant admits that he received from
Le Bourgeois $4,000 for the rent of the prop-
erty for the year 1885; that he has rented for
two years from January 1, 1886, at $5,000
per annum; and that he has given Le Bour-
geois the privilege of purchasing at the ex-
piration of his lease for $15,000, payable in
installments. After the answer
was filed
both Edward F. Stockmeyer and McCan died,
and the suit was revived in the name of C.
Stockmeyer, testamentary executor of E. F.
Stockmeyer, against the appellees, the widow
and children of McCan. Upon final hearing
the bill was dismissed with costs.

Mr. Alfred Goldthwaite for appellant.
Messrs. J. D. Rouse and Wm. Grant for
appellees.

Mr. Justice Harlan delivered the opinion of the court:

The case will be considered in the two aspects in which it is presented in behalf of the appellant. The first one is, that at the time Edward F. Stockmeyer entered into the agreement of the 25th day of January, 1884, before the notary, he was in a condition of great mental weakness; that there was gross inadequacy of consideration for the mortgage; and that from these circumstances imposition or undue influence ought to be inferred.

The bill does not allege that Stockmever was incapable, in law, of executing the agreement in question. The averment that at the time of making it he was losing, and

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186]

terdiction be pronounced before bringing
suit, etc.
5. That if the party die
within thirty days after making the act or
contract, the insanity may be shown by evi-
dence, without having applied for the in-
terdiction; but if more than that time elapse,
the insanity cannot be shown to invalidate
the act or contract, unless the interdiction
shall have been applied for, except in the
That if any instrument or other act of a per-
son deceased contain in itself evidence of
insanity in the party, then it shall be de-
clared void, although more than thirty days
have elapsed between the time of making
the act and the death of the party, and
though no petition shall have been presented
for his interdiction. 7. In the case men-
tioned in the preceding rule, other proofs of
insanity may be offered, etc. 8. That where
insanity is alleged to avoid a donation or
other gratuitous contract, it is not necessary
to show that the insanity was generally
known; it will be sufficient to show that it
existed, and if the party be dead, without
having been interdicted, it is not necessary
to show in this case that interdiction had
been applied for."

to a great extent had lost, his capacity to
attend to business and to manage his affairs,
and that his mind was seriously impaired so
as to affect his understanding and judgment,
and so continued until he was judicially in-
terdicted by a judgment rendered November
11, 1884, does not meet the requirements of
the Civil Code of Louisiana. By that Code
it is provided: "Art. 401. All acts done by
a person interdicted from the date of the fil-case provided for in the following rule: 6.
ing of the petition until the day when the
same is pronounced are null. Art. 402. No
act anterior to the petition for interdiction
shall be annulled, except when it shall be
proved that the cause of such interdiction
notoriously existed at the time when the acts,
the validity of which is contested, were
made or done, or that the party who con-
tracted with the interdicted person could
not have been deceived as to the situation of
his mind. Notoriously, in this article, means
that the cause of the interdiction was gener-
ally known by the persons who saw and con-
versed with the party. Art. 403. After the
death of a person, the validity of acts done
by him cannot be contested for cause of in-
sanity, unless his interdiction was pro-
nounced or petitioned for previous to the
death of such person, except in cases in which It is apparent from these provisions that
the mental alienation manifested itself within | the allegations of the bill as to the condition
ten days previous to the decease, or in which
the proof of want of reason results from the
act itself which is contested."

Other articles of the Code are as follows: “Art. 1782. All persons have the capacity to contract except those whose incapacity is specially declared by law. These are persons of insane mind, those who are interdicted, minors and married women. Art. 1783. All cases of incapacity are subject to the following modifications and exceptions: Art. 1784. Persons interdicted can, in no case whatever, make a valid contract after the petition has been presented for their interdiction until it be legally removed. Art. 1788. The contract, entered into by a person of insane mind, is void for want

of Stockmeyer's mind on the 25th of January, 1884, do not entitle the plaintiff to relief upon the ground that he was incapable in law of making a binding agreement. And the proof fails to show that the persons who at that time generally saw and conversed with him, knew or even believed him to be in a state of mental derangement, or that McCan had any ground whatever to doubt his capacity to contract. Louisiana Bank v. Dubreuil, 5 Mart. O. S. 416, 425. On the contrary, the evidence shows that when he intervened in the McCan mortgage, he was, although of peculiar and at times eccentric manners, not incompetent for the transaction of business. He recognized the fact that Henry and George Godberry needed more of consent. It is not the judgment of inter-money to carry on their plantation, and that, diction, therefore, that creates the incapacity; unless they obtained it, his interests under it is evidence only of its existence: the prior pledge would be put in peril. He And from these principles result the following was not himself able to make further adrules: 1. That, after the interdiction, no vances, and approved, if he did not suggest, other evidence than the interdiction itself is that application be made for that purpose to necessary to prove the incapacity of the per- McCan. The latter agreed to make advances son, and to invalidate any contract he may for the current year only upon the condition, have made after the day the petition for in- among others, that his mortgage and crop terdiction was presented. 2. As to lien should take precedence of all others. contracts made prior to the application for This Stockmeyer perfectly understood and interdiction they can be invalidated by prov-distinctly assented to with full apprehension ing the incapacity to bave existed at the time of what he was doing. And that condition the contracts were made. 3. But in order to was plainly expressed in the contract; for it 187] prevent imposition, it is not enough to make is therein stipulated that the mortgage and the proof mentioned in the last rule; it must privilege then existing for the two notes for also, in that case, be shown that the person $8,750 each, as well as for the indebtedness interdicted was known, by those who generally to Stockmeyer of $32,000 for and on account saw and conversed with him, to be in a state of advances to the Angelina plantation, of mental derangement, or that the person were "subordinate" to the McCan notes and who contracted with him, from that or other mortgage. The testimony of the notary becircumstances, was acquainted with his in- fore whom the McCan mortgage was executed capacity. 4. That, except in the case of is positive to the effect that, at that time, death, hereafter provided for, no suit can be there was nothing peculiar in Stockmeyer's brought to invalidate a contract on conversation, and that he presented the same account of insanity, unless judgment of in-appearance as on several previous occasions

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[190]

when transacting business with that officer. | courts in the decrees rendered upon such
The truth is, that Stockmeyer's mind did contract. The law has, by express provisions,
not commence to give way, so far as his ordained the mode in which its own officers
friends could perceive, until within a few shall enforce the judgments of the courts."
days-not more than a week or ten days- Justices Land and Buchanan held that the
prior to February 20, 1884, when he was right of the debtor to appraisement in case
transferred to the Louisiana Retreat for the of the forced alienation of his property might
Insane. The physician who examined him be waived by him, and his property sold at
on that day, and by whose advice he was re- the first offer for cash for whatever price it
moved to that institution, testified that he would bring. But they concurred in the
was engaged in the transaction of his busi-judgment of affirmance because “the waiver
ness all the time until about a week before in such a case must be in a more solemn and
being committed to the asylum. Undoubt-authentic form than that of a promissory
edly he was on and after that date incapable note, otherwise the waiver would become a
of making a binding contract. But we are mere formula in such instrument, and the
not to infer incapacity to have existed on entire policy of the law would thereby be
the 25th of January, 1884, from the mere fact defeated, to the injury of both debtors and
that he became insane within a few days creditors."
before his removal to the asylum for treat-
ment.

The suggestion that there was gross inadequacy of consideration is without force. Stockmeyer consented that his mortgage be subordinated to McCan's, because, in his judgment, further advances to the plantation could not be otherwise obtained, and without such advances he supposed, and reasonably, that it would run to waste, destroying all chance to save his debt. Besides, the advances by McCan, in consideration of his mortgage being accorded priority, was enough to sustain the agreement to that effect. After a close scrutiny of all the evidence we are of opinion that nothing is disclosed to support the contention that the McCan mortgage and crop lien were obtained by imposition or undue influence. No such inference is justified by the evidence.

The subject was elaborately considered by
the Supreme Court of Louisiana in Broadwell
v. Rodrigues, 18 La. Ann. 68, where the ques-
tion 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 can-
not 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 im-
plicitly 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
The other aspect in which the case is pre- to be appraised before it could be sold by
sented by the appellant involves the validity the sheriff in execution of a judgment is a
of the sale by the sheriff under the proceed-public law, and that an agreement to waive
ings for executory process. The first point
made in support of this general contention
is that the clause in the McCan mortgage
dispensing with appraisement was not valid
or binding under the laws of Louisiana:
that, without appraisement, a legal sale
could not occur. Under the Louisiana law
(Code of Practice 1870, art. 745), "when the
sheriff sells property which he has seized
conformably to provisions contained in this
chapter [relating to executory process], he
must cause the same appraisements to be
made, and observe the same formalities, as
are prescribed for the sale of property seized
in execution." The latter sales are provided
for in articles 663 to 704 inclusive of the
Code. In Levicks v. Walker, 15 La. Ann.
245.-a case much relied upon by the appel-
lant, the suit was upon a note executed in
Pennsylvania, the maker describing himself
as residing in Louisiana, and promising to
pay, without defalcation, and "without any
relief whatever from Appraisement or Valu-
ation Laws." Judgment, in that form, was
refused, and the plaintiff appealed. Chief
Justice Merrick, in affirmance of the judg-
ment, said: "We think the stipulation in a
contract that the property of the debtor shall
be sold without appraisement in the event of
nonpayment at maturity, one of those facts
which ought not to be recognized by our |

or dispense with the appraisement is ab-
solutely void; and on the other, that the ne-
cessity 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 jurispru-
dence, we could hardly have deemed this
question an open one, for it has been uni-
formly held that the legal formalities attend-
ing final process are established by law in
favor of debtors in executions, 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 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. Harding, 12 La. Ann. 271; Le Blanc
v. Dubroca, 6 La. Ann. 362; McDonogh 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.

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165. So that the objection that the sale was | The clerk was not authorized, under the or-
illegal for want of an appraisement is with-
out any foundation upon which to rest.
But it is said that the Godberrys could not
by their agreement with McCan waive ap-
praisement 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, pro-
viding that "several obligations are pro-
duced, when what is promised by one of the
obligers 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 dis-
tinct as if they had been in different con-
tracts and made at different times." To this
suggestion it is sufficient to answer that the
right of appraisement is given by the Stat-
ute 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 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.

to

der 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
plaintiff's rights." The facts here are en-
tirely different from those in the above case.
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." 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 adver-
tise and sell, according to law,
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 spec.
ial injury to his rights. Besides, we think,
in view of the petition and order for execu.
tory 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 mort-
gagee, by his petition, or in any other mode,
waived his right to a sale without appraise-
ment and asked a sale under the Statute with
appraisement.

"In

Another question is, whether the sale was
invalid by reason of the entire property hav-
ing been sold, in block, at the seat of justice,
and not, as to any portion of it, on the plan-
tation. By article 664 of the Code of Prac-
tice it is provided that the sale of the prop-
erty 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:
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 advertise-
ment of sale. Art. 666: "Animals and
utensils attached to plantations and manu-
factures, 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. 677:
"The effects seized must be appraised with
such minuteness that they may be sold to
gether or separately, to the best advantage of
the debtor, as he may direct."

It is also said that, in the writ commanding the sheriff to seize and sell, he was required "to seize, and, after the legal delays, [192] 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 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 Now, the objection as to the place of sale sales under executory process. The order is fully met by Walker v. Villaraso, 26 La. was in accordance with the prayer of the pe- Ann. 42, 44, decided in 1874, where the tition, and no sale could have been legally court, after quoting article 666, said: "The effected under it, without observing the two preceding articles [664, 665] provide formalities required in ordinary cases under that sale of the property must be made at executory proceedings, one of which is, that the seat of justice, but in the country it the property shall be previously appraised. may be made on the plantations which are

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[195]

to be sold, if the debtor requires it, of terms of the advertisement of sale, in re-
which notice must be given in the advertise- spect either to the place of sale or the mode
ment. These articles must all be construed of conducting it. In view of the terms of
together so as to give effect to each. Where the advertisement, a sale in conformity with
a plantation and its fixtures are to be sold the above order, without re-advertisement,
under a mortgage, as in this case, the sale would have been irregular, if not invalid.
must be made at the seat of justice, unless This order is liable to the same objection as
the debtor requires it to be made on the the one before this court in Freeman v. Daw-
plantation. It is not intended that the arti- son, 110 U. S. 264, 270 [28: 141, 144], of
cles attached to the plantation and which are which it was said: "The action of the cir-
mortgageable shall be sold in one place and cuit judge in directing the recall of the
the land in another. Under the writ of seiz- execution in vacation, out of court, without
ure and sale all are seized and sold at one notice to the judgment creditor, was irregu
time and place." And, perhaps, that the lar and unauthorized, and of no legal valid-
privilege given to the debtor might not be ity."
abused, the General Assembly, by the Act of
March 2, 1876, relating to sales by sheriffs
and coroners (Laws of La. 1876, p. 50), de-
clared 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 seiz-
ure. 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 execu-out the property he desires sold, provided it
tory 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 adver-
tised 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 court-house of the par-
ish; and a copy of the petition of protest by
debtors, with the accompanying affidavit,
and the order of the judge of the 22d Judi-
cial District, requiring the plantation to be
sold at the court-house, and the other arti-
cles 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 oc-
cur according to the advertisement. It thus
appears that, in any view of the Statute,
the demand for the sale of the personal prop-
erty on the plantation, apart from the plan-
tation, was out of time.

As to the effect upon the sale of the order made at chambers by the judge of the Twenty-second Judicial District, directing that the personal property covered by the McCan mortgage be appraised and sold separately on the plantation, but little need be said. Touching this order it may be observed that the counsel for the appellant does not refer to any statute of Louisiana conferring upon the judge who made it the power to act in any case pending in another district, in which there is an actual vacancy in the office of judge; while the counsel for the appellees say that if any authority exists for the exercise of such a power they have been unable to find it in the laws of that State. It does not seem to us that this order, made without citation or prayer for citation against the party to be affected by it, can have the force of a judgment, nor did it authorize the sheriff to depart from the

It is contended with much earnestness that the sale of the personal property in a lump, along with the plantation, was unauthorized by the Statute and void. We are not satisfied of the soundness of this view. In Morris v. Womble, 30 La. Ann. 1312, 1314, the question was, whether the debtor, who had specially mortgaged his plantation, with all the buildings and improvements thereon, was entitled, of right, to have the plantation sold in lots. The court, after observing that, in the case of a fi. fa. on an ordinary judgment, the debtor has the right to point be available and sufficient, says: "But the case we conceive to be very different where the debt for which the sale is made bears special mortgage on the thing to be sold, and where the thing has been mortgaged as an entirety, a unit, and thus made by contrast and in contemplation of the parties indivisible, whether so by nature or not." "Thus," the court proceeds, "where a plantation, with its accessories, has been specially mortgaged, the stock, implements, etc., thereto attached by the owner, and therefore made immovable by accession, cannot be sold separately from the plantation itself, no more than can a house or other building on it. When the law gives the mortgage creditor the right to seize the whole thing mortgaged, it gives him the right to sell the whole thing, if it be indivisible by nature or only so by the agreement and contract of the parties."

But if it be assumed that the personal property used in the cultivation of the plantation, and embraced in the special mortgage, ought not to have been sold in block with the plantation, but each article separately, the failure to do so did not render the sale void. The utmost that could be said is that the sale was informal and irregular. But in Louisiana mere informalities or irregularities in a judicial sale do not alone constitute a sufficient ground for setting it aside. The bill alleges that the property did not bring a fair value, and that, by reason of the mode of sale, persons who would have bid did not attend, and were prevented from bidding. These allegations, if material, are not sustained by proof. Nor is there sufficient proof that the property, if resold, would bring any larger price than McCan bid for it, or would be sufficient to discharge his claim in full. The plaintiff does not propose that he, or anyone else, will, at a resale, bid any larger sum than McCan paid.

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