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Docket Number

No. 15,077.

Attorney(S)

EDWARD SIMON and GUSTAVE A. BREAUX, for appellants. MONTON SIMON and MARTIN VOORHIES (ALBERT VOORHIES, of counsel), for appellee.

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Smart Summary

Summary of Opinion: Thibodeaux v. Thibodeaux et al., No. 15,077 (La. May 9, 1904)

Factual and Procedural Background

The plaintiff, Ovignac Thibodeaux, alleged that at a probate sale on December 11, 1894, he became the adjudicatee of an undivided one-half interest in two tracts of land from the succession of Treville Thibodeaux: a plantation tract of about 450 arpents and a woodland tract of about 260 arpents. The remaining undivided half allegedly belonged to heirs of Aspasie Le Blanc. The plaintiff sought partition in kind to segregate the half interest he acquired.

Defendants (about 14 persons, heirs and co-owners) answered that the adjudication was tainted with fraud — that plaintiff's bid was sham, bore no relation to the property's real value, plaintiff never paid or took possession, and the adjudication's proces verbal was not recorded until shortly before this suit was filed. Relevant background: Aspasie Le Blanc died in 1881; Treville Thibodeaux died in July 1891. An inventory in August 1891 valued the property at $14,025.67, listing the plantation tract at $4,500; the woodland tract was not mentioned in that inventory. Valery Thibodeaux was appointed administrator and conducted proceedings including publication of a tableau of debts and a sale. The sale of December 11, 1894 adjudicated Treville's interest in the plantation half to plaintiff for $200 and the woodland half for $50; the proces verbal was filed in the succession record January 25, 1895, but not recorded until February 17, 1903. Defendants sought to introduce evidence of value at the date of sale and plaintiff's alleged admissions; some such testimony and the administrator's testimony taken under commission were excluded at trial. The district court entered judgment for plaintiff; defendants appealed. In this court plaintiff pleads the five-year prescription (Article 3543) against the attack on his title.

Legal Issues Presented

Whether, in an action for partition brought by the adjudicatee claiming ownership under a probate sale, the co-heirs (defendants) may inquire into and attack the validity of the adjudication (including price inadequacy and failure to comply with terms) or whether such an attack is barred as a collateral attack.
Whether the trial court erred in excluding evidence offered by defendants: (a) testimony as to the value of the property at the date of the sale and statements by the plaintiff concerning payment and possession, and (b) testimony of the administrator taken under commission.
Whether the five-year prescription of Article 3543 for informalities in public sales applies to bar defendants' attack on the probate sale.
Whether the inadequacy of the sale price (compared to appraisement/value) constitutes a mere informality (curable by prescription) or a matter of substance defeating the sale.

Arguments of the Parties

Plaintiff's Arguments

Plaintiff contends that inadequacy of the sale price does not permit a collateral attack upon his title obtained at the probate sale.
In this court plaintiff pleads the five-year prescription of Article 3543 to bar collateral challenges to the sale.

Defendants' Arguments

Defendants alleged the adjudication was procured by fraud: plaintiff's bid was a sham and bore no relation to the property's real value.
Defendants asserted plaintiff never complied with the sale terms (did not pay) and did not take possession, and that the proces verbal was not timely recorded.
They offered to prove the property's value at the date of sale and to introduce admissions by plaintiff to show nonpayment and sham bid.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Davis' Heirs v. Elkins et al., 9 La. 147	Supports that, in actions asserting ownership (such as partition), ownership must be alleged and proved and that defendants have the right of denial and counterproof.	The court cites it with Civ. Code art. 1320 to justify that alleging ownership by the plaintiff concedes the defendants' right to deny and introduce counterproof regarding title.
Michel v. Davis' Heirs, 12 La. 152	Same principle: ownership must be alleged and proved in actions asserting ownership, allowing denial and counterproof.	Used alongside Davis' Heirs to show the necessity of proof of title in partition and the consequent right of defendants to contest.
Barbee v. Perkins et al., 23 La. Ann. 331	Recognizes that an objection that an attack upon a sale could not be made collaterally would be good when positions are reversed (i.e., when a party relies on an authentic act and tends no issue of title).	The court acknowledges the authority but distinguishes the present case, explaining that because plaintiff alleged title in the partition suit, defendants must be allowed to meet that allegation, including attacking the sale.
Cronan v. Cochran et al., 27 La. Ann. 120	Establishes that a party assailed in a petitory action may inquire into the validity of the proceedings by which the attacker acquired title.	The court cites this to support that the rule permitting inquiry into the validity of acquisition applies to actions for partition as well as petitory actions.
Godwin v. Neustadtl, 42 La. Ann. 735, 7 South. 744	Holds that answers to interrogatories on facts and articles stand as part of the pleadings and, when used as a substitute for a counter letter, cannot be contradicted except by a counter letter.	The court cites the case for the general rule regarding the effect of answers to interrogatories but limits its application to parties to the instrument attacked, noting the rule's inapplicability to third persons.
Rush v. Landers, 107 La. 549, 32 South. 95, 57 L.R.A. 353	States that the rule excluding contradiction of interrogatory-answers applies only to parties to the instrument and does not apply to third persons.	The court uses this authority to question whether the defendants are parties to the act by which plaintiff acquired title, but ultimately does not decide that point because other evidence undermines plaintiff's title.
Succession of Hood and Wife, 33 La. Ann. 472	Holds that property of a succession cannot legally be sold at first offering for cash for less than two-thirds of the appraisement.	The court relies on this decision when distinguishing between formal irregularities cured by prescription and substantive defects: a sale for less than required amount may be an informality unless fraud or injury is shown; if sold for less than value the failure may be a substantive defect.

Court's Reasoning and Analysis

The court began by emphasizing that ownership is the basis of a partition action and therefore must be alleged and proved by the plaintiff. Citing Civ. Code art. 1320 and precedents (Davis' Heirs; Michel), the court concluded that the plaintiff's allegation of ownership necessarily concedes the defendants' right to deny and offer counterproof, including challenges to the probate sale by which plaintiff claims title.

The court explained that while an attack on a judicial sale may be barred as a collateral attack in some circumstances (Barbee), that principle does not apply where the plaintiff in a partition suit asserts ownership and thereby forces defendants to meet the title issue. The court analogized the right to inquire into the validity of acquisition in petitory actions (Cronan) to actions for partition, holding the same right exists.

Applying these principles, the court found error in the exclusion of defendants' proffered testimony regarding (1) the value of the property at the date of sale and (2) plaintiff's alleged failure to pay and take possession. Those matters directly bore on the substance of the sale and plaintiff's asserted ownership. However, the court affirmed the exclusion of the administrator Valery Thibodeaux's testimony taken under commission because proper notice of the time and place of taking the deposition was not given as required by Code Prac. art. 430.

The court then addressed plaintiff's plea of prescription under Article 3543, which prescribes five years against informalities in public sales. It analyzed the statutory distinction between mere "formalities" and matters of "substance." The court recognized that certain failures (e.g., omission to appraise within the year in specified circumstances) may be formalities cured by prescription, but concluded that where the sale produced a price far below appraised or actual value and thereby deprived interested parties of their rights, the defect is a substantive one not cured by the five-year prescription.

In the present case the plantation tract's undivided half was adjudicated for $200 though it had been appraised at $4,500 three years earlier (and defendants offered evidence it was worth $6,000 at the sale date). The woodland tract, adjudicated for $50, was not included in the inventory and thus might not have been within the order of sale. Given these facts, the court concluded the sale's inadequacy was a substantive defect and that Article 3543 did not bar the defendants' attack.

Holding and Implications

Holding: It is ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that plaintiff's demand be rejected, at his costs in both courts. JUDGMENT REVERSED; PLAINTIFF'S DEMAND REJECTED.

Implications: The direct effect is that the district court judgment granting partition to plaintiff is reversed and the plaintiff's claim is rejected; plaintiff bears costs in both courts. The opinion reasons that inadequacy of price and failure to conform to essential requisites of a probate sale can amount to substantive defects which are not barred by the five-year prescription for mere informalities (Article 3543). The court did not purport to establish a novel legal rule beyond applying established distinctions between formalities and substantive defects; no broader new precedent beyond the court's application of existing authorities is announced in the opinion.

Note: Justice Provosty dissented, as stated in the opinion.

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THIBODEAUX v. THIBODEAUX et al. Rehearing denied June 6, 1904.

Statement of the Case.

MONROE, J.

The plaintiff alleges that at a sale made December 11, 1894, in the matter of the succession of Treville Thibodeaux, he became the adjudicatee of the undivided one half interest of said succession in two tracts of land in the parish of St. Martin, the one, containing about 450 arpents, used as a plantation, and the other, containing about 260 arpents, consisting of woodland; and that the other undivided half of said tracts belongs to the heirs (of whom he is one) of Aspasie Le Blanc, predeceased wife of said Treville Thibodeaux. He further alleges that he wishes a partition of the property to be effected in so far as to segregate the half interest acquired by him as adjudicatee from the other half, and that such partition can be made in kind, and he prays judgment accordingly.

The defendants, some 14 in number, for answer aver that they and the plaintiff, as children or grandchildren, and heirs, of Treville Thibodeaux and Aspasie Le Blanc, are the owners in common of the two tracts of land, described in the petition, which were owned by the community existing between their said ancestors; that the alleged adjudication to the plaintiff of an undivided one half interest in said tracts was tainted with fraud, in that plaintiff's bid was a sham, and bore no proper relation to the real value of the property, and that plaintiff never complied therewith or took possession of said property, but, on the contrary, disclaimed any rights in the same, and that the proces verbal of the adjudication was not recorded until within a few days of the filing of this suit.

The facts, as disclosed by the evidence, are that Aspasie Le Blanc died in 1881, and that Treville Thibodeaux, her surviving husband, was put in possession of the estate belonging to the community which had existed between them, and which included the property here in controversy, as surviving partner and usufructuary. He was then, and had been for some years, administrator of the estate of P.A. Thibodeaux, and in 1889 he filed a final account showing a certain fund for distribution to the heirs of that estate, but the distribution was not made, or had only been partially made, when, in July, 1891, he died. According to the inventory taken in August, 1891, in the "Succession of Treville Thibodeaux and Wife," the property included therein was worth $14,025.67, and the plantation tract here in dispute was worth $4,500, the woodland tract not being mentioned.

Valery Thibodeaux, a son-in-law, was appointed administrator of both successions, and in October, 1891, presented to the court a petition, in which was incorporated a tableau of the debts, amounting in the aggregate to $7,296.22, of which $3,149.17 appeared to be due to the succession of P.A. Thibodeaux, and he alleged that he had, by order of court, sold certain movable property, the proceeds of which, added to the cash on hand, as per the inventory, amounted to $2,138.85, but that said sum was insufficient, and that, before proceeding further, he desired to have said tableau published, and, after due proceedings, approved, and to obtain an order for the sale of additional property for the payment of the debts thereby recognized. Upon this petition, an order was made directing the tableau thus presented to be published, and the publication having been made and the heirs notified, and oppositions having been filed, there was a hearing, and a judgment whereby certain items, amounting in the aggregate to $1,434, were rejected, and, as thus amended, the tableau was approved and homologated, the other claims appearing thereon "recognized as just and valid debts due by said estates," and the administrator directed to advertise and sell, for cash, the property of said estates to pay the same. The administrator proceeded accordingly, and advertised the property for sale, when, in June, 1892, several of the heirs now before the court, including the plaintiff, filed a petition in which they alleged, in substance, that at the date of the death of Aspasie Thibodeaux the community owed no debts; that the whole, or a greater part, of the amount said to be due to the succession of P.A. Thibodeaux had been paid, and that there was sufficient cash on hand wherewith to pay the balance, as well as other debts; that a certain tract of land included in the inventory, and containing some 47 arpents, belonged to the separate estate of Aspasie Thibodeaux, and that the sale thereof, and of the interest of her succession in the remaining property, was unauthorized; and they prayed for an injunction to restrain the sale, which was issued accordingly.

The answer of the administrator is not in the record, but we find that a judgment was rendered, perpetuating the injunction thus issued, in so far as to restrain the administrator from selling the interest of the succession of Aspasie Thibodeaux in the property which had been advertised, and ordering that the probate sale be proceeded with with respect to Treville Thibodeaux's interest therein. The administrator thereupon offered for sale certain movable property, as also Treville Thibodeaux's interest in the land here in question, and on December 11, 1894, adjudicated the latter to the plaintiff — the interest in the plantation tract for $200, and the interest in the woodland tract for $50 — and the proces verbal, signed by him and the adjudicatee and two witnesses, and reciting that the sales had been made for cash, the aggregate amount being $502.25, was duly executed, and on January 25, 1895, filed in court as part of the succession proceedings. It was not, however, recorded until February 17, 1903, two days before the filing of this suit. Following this sale, in May, 1895, the administrator presented to the court his final account, from which it appears that, apart from the property and interest of the succession of Aspasie Thibodeaux, and inclusive of the sum of $502.25, "net proceeds of the sale of Dec. 11, '94," with which he debits himself, there had come into his hands the sum of $3,850.90, as against which the account shows claims, recognized as privileged, to the amount of $4,128.60, and the petition, in which the account is incorporated, proceeds in part as follows, to wit:

"Your accountant avers that, there not being sufficient funds to pay the privileges, it is not necessary to mention in detail the mortgage claims due by the estate of Treville Thibodeaux, such as the balance due to the heirs of Placide Amant Thibodeaux, about $2,000, and the balance that may be due, if any, by Treville Thibodeaux to the heirs of Mozart Thibodeaux; and much less is it necessary to mention the ordinary debts due by the said estate, such as the note due to the heirs of J. Odillon Thibodeaux et al."

There is, then, a prayer that the account be published and the heirs cited, that the heirs of Aspasie Thibodeaux be put in possession of her estate, and that the account be homologated and the petitioner discharged. Several of the heirs, including the plaintiff and his brother and sisters, accepted service, and there was an order for the publication of the account, since which no further proceedings appear to have been taken. Upon the trial in the district court the defendant propounded to the plaintiff interrogatories on facts and articles, to which the plaintiff answered, in substance, that he is one of the heirs of Treville Thibodeaux; that he attended the sale at which the property here in question was adjudicated; that the sale was made by Robert Martin, for cash; that he gave a draft on said Martin for the amount of his bid; that he does not know that the property was inventoried at more than double the amount for which it was adjudicated, nor does he know that there was no sale because of his having paid nothing; that he took possession of the undivided half interest adjudicated to him; that he was not prevented by the administrator, and that the administrator did not protest to him against his so doing.

The defendants offered to prove, by witnesses whom they tendered, the value of the property in question at the date of the adjudication, as also certain statements or admissions said to have been made by the plaintiff with regard to his alleged payment of the price of the property, but the testimony was excluded on objection by plaintiff's counsel; and they offered the testimony of Valery Thibodeaux, the administrator, which was taken under commission, because he was physically unable to appear in court, and it was likewise excluded. It does not appear, and it is not alleged, that the property in question was appraised within 12 months preceding the sale, or at any time after the taking of the inventory in 1891. Upon the case as thus presented there was judgment for plaintiff, from which defendants have appealed. In this court the plaintiff pleads the prescription of five years against the attack on his title.

Opinion.

The counsel for the plaintiff insist that the inadequacy of the price affords no ground for a collateral attack upon his title. Ownership is, however, the basis of the action for partition which has been brought by the plaintiff, and it must be alleged and proved, and the necessity for such allegation and proof is of itself a concession of the defendants' right of denial and counterproof. Civ. Code, art. 1320; Davis' Heirs v. Elkins et al., 9 La. 147; Michel v. Davis' Heirs, 12 La. 152. If the positions of the litigants were reversed, and the defendants, under cover of an action for partition, had initiated an attack upon a judicial sale, the objection that the attack could not thus be made collaterally would be good. Barbee v. Perkins et al., 23 La. Ann. 331. But, where, as in this case, the plaintiff in the suit alleges, as he is bound to allege, that he is part owner of certain property, sets up, as he is bound to set up, title thereto, and asks that the court, recognizing his ownership, will order that the property be divided between him and those whom he sues, he challenges the latter for all the purposes of the case, and they have no choice in the matter, but must come into court and then and there meet the issues tendered, including the issue of ownership vel non in the plaintiff, which they find upon the threshold. It has been held by this court that the right of a party assailed in a petitory action to inquire into the validity of the proceedings under which the party attacking acquired title can admit of no doubt (Cronan v. Cochran et al., 27 La. Ann. 120), and, the rule, and the reason for it, are equally applicable in actions for partition. We are therefore of opinion that, quoad the objections that this is a suit for partition in which plaintiff relies upon an authentic act and tenders no issue of title, and that his title cannot be attacked collaterally, the testimony offered on behalf of the defendants to prove the value of the property at the date of the sale and the failure of the plaintiff to comply with the terms of the adjudication and to take possession was improperly excluded. Upon the other hand, the testimony of Valery Thibodeaux, the administrator, taken under commission whilst the witness was lying sick at his home in the parish where the case was tried, for the purpose of showing that he had not received from the plaintiff the cash price for which the property was adjudicated and had not consented that the plaintiff should take possession, was properly excluded, because notice of the time and place of its taking was not given as contemplated by Code Prac. art. 430.

The learned counsel also insist that the answers of their client to the interrogatories on facts and articles are conclusive upon the defendants, and they rely upon decisions of this court in which it has been held that such answers stand as part of the pleadings, "and when evoked, as a substitute for a counter letter, to prove what can otherwise be proved by nothing but a counter letter, they cannot be contradicted by anything but a counter letter." Godwin v. Neustadtl, 42 La. Ann. 735, 7 South. 744. The rule of exclusion thus stated applies, however, only to the parties to the instrument attacked, and does not apply to third persons (Rush v. Landers, 107 La. 549, 32 South. 95, 57 L.R.A. 353), and, inasmuch as the administrator, particularly of an insolvent succession, represents the creditors rather than the heirs, it may well be questioned whether the defendants are to be considered parties to the act by which the plaintiff acquired. It is unnecessary, however, that this point should be decided, because the answers of the plaintiff show that one piece of the property, the undivided half of which was adjudicated to him for $200, was valued, when last appraised, at $4,500, and that the other piece had not been included in the inventory, and this, we think, is fatal to his title, unless defendants' attack is barred by prescription.

Article 3543, upon which plaintiff relies as supporting his plea, provides that "all informalities connected with or growing out of any public sale, made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sale after the lapse of five years from the time of making it," etc.

The word "form" is commonly used, particularly in referring to laws and legal proceedings, as the antithesis of "substance," and the meaning of the statute above recited is that irregularities an illegalities in public sales which do not reach matters that are of the essence of those contracts, or prejudicially affect the substantial rights of the parties who may be interested therein, shall be prescribed against after the lapse of five years. In particular cases it has been held that, where the law requires that property which is to be sold shall be first appraised and shall bring its appraised value, or a given proportion thereof, after having been advertised in a manner and for a period specified, the omission to appraise, failure to obtain the amount of the appraisement, or the proportion required, and error or failure in the matter of the advertisement, are informalities which are cured by the prescription here relied on. This may well be true, since the matters of substance involved in making a public sale are that the parties interested shall be afforded equal opportunities, and that the property shall bring as fair a price, the circumstances considered, as could reasonably be expected; and all this may be accomplished notwithstanding that there have been the omissions and failures mentioned. But if, by reason thereof, interested parties are deprived of their rights, or the main purpose in selling the property is defeated, and injury results, such omissions and failures affect, and themselves become, matters of substance, and can no longer be regarded as mere informalities. There seem to be but two cases in which appraisements are required to be made within the year — the one, where the property of the succession is offered first on credit (Civ. Code, arts. 1169, 1170); the other, where a partition is to be effected (Civ. Code, arts. 1324-1326) — but the law requires that the property of a succession shall be inventoried and appraised (Civ. Code, arts. 1101, 1106), and it has been held by this court that it cannot legally be sold at the first offering, for cash, for less than two-thirds of the appraisement. Succession of Hood and Wife, 33 La. Ann. 472. If, however, it be sold for less, but neither fraud nor injury are shown, and it does not appear that the price obtained was less than could reasonably have been expected at a forced sale, the failure to obtain the required amount may be regarded as an informality. Upon the other hand, if it be sold, not only for less than the required amount, but for less than its value at the time and under the circumstances, the failure to obtain to required amount is not an informality, but a matter of substance.

In the instant case the plantation tract, of 450 acres, the undivided half of which was sold in 1894 for $200, had been last appraised in 1891 at $4,500, and the defendant offered to prove that at the date of the sale it was worth $6,000. The woodland tract, of 260 acres, which was sold for $50, is said to have been worth $500, but it was not included in the inventory, and, for aught that appears, was not within the contemplation of the order of sale. Our conclusion, therefore, is that the prescription relied on by the plaintiff has no application.

For these reasons it is ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that plaintiff's demand be rejected, at his costs in both courts.

PROVOSTY, J., dissents.

THIBODEAUX v. THIBODEAUX