THIS case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Louisiana.
It was an action brought by John P. Jeter, a citizen of Louisiana, resident in New Orleans, against James Hewitt and David Heron, citizens of the State of Kentucky, temporarily within the jurisdiction of the Circuit Court for the district of Louisiana.
The nature and history of the case are stated in the opinion of the court. It was submitted to the Circuit Court upon the pleadings, depositions, oral testimony, and arguments of counsel, which found the facts substantially as they are narrated in the opinion of this court, and then dismissed the petition of the plaintiff. A writ of error was sued out, which brought the case up to this court.
It was argued by Mr. Carlisle, upon a brief filed by himself and Mr. Badger, for the plaintiff in error, and by Mr. Benjamin for the defendants.
As the judgment of this court turned upon the point that it was res judicata, only the arguments upon that subject will be reported.
The counsel for the plaintiff in error made the following points, amongst others:
VI. The validity of this title set up by the defendants is not res judicata, as maintained by counsel in the court below. The monition suit on which this pretension is founded could have no such effect, if the proceedings in the fifth District Court were a nullity. This seems clear upon principle.
5 Monition Act, B. and C.'s Dig., 586.
City Bank v. Walden, 1 Ann., 47.
16 Louisiana R., 596.
Besides, the court where the monition suit was prosecuted had no jurisdiction over the original suit, and could have none over that which was merely incidental.
Again: The judgment in the monition suit was not a judgment upon the merits, even against Mrs. Ford, and was not at all against Jeter.
C. C., 2265.
Finally: The decree of homologation, in its terms, seems really to come to nothing, since it only confirms and homologates the sale, 'in so far as the same has not been opposed,' while the record shows that it was totally opposed.
VII. Jeter is not estopped to claim against the sheriff's sale, or to show the nullity of the proceedings upon which it is based.
In this respect, this case is in striking contrast with Erwin v. Lowry, in 7 Howard. There, Hector McNeill, under whom Lowry claimed, had actively participated in the proceedings at the sale, had joined in the selection of appraisers, had requested the marshal to offer the land and negroes together, which was done, and all this in the presence of Erwin; and, upon the faith of this conduct, Erwin purchased. In the present case, on the contrary, it is distinctly proven, by two witnesses, that Jeter, 'in a loud and audible tone,' announced 'to the sheriff and the by-standers' that he was the owner of the property, and forbade the sale of it; and this announcement was made before the property was adjudicated to Hewitt & Heron.'
'He made his objections known publicly to the crowd.' The sheriff answered, that 'he would proceed with the sale.'
The only facts relied on by the defendants, as creating an estoppel, are, first, that Jeter was present at the sale, and, when the property was first offered, bid for it $70,000, and it was knocked down to him; and secondly, that in 1852 he joined with Mrs. Ford in making a deed for forty arpens of the land, to Hewitt Heron, for $2,000.
As to the first, his bid was for the protection of his own interest, and to avoid litigation. He had already paid Mrs. Ford $5,000, and he had agreed to pay, not only the debts charged on this property, but all the debts. Such a fact, even if the other party had acted upon it, could create no estoppel.
Hearne v. Rogers, 17 Eng. C. L. Rep., 451, 452.
But Hewitt & Heron did not act upon it. The sheriff refused Jeter's draft on Hill, McLean, & Co., of New Orleans, with whom he had arranged for the money, and refused him time to go to New Orleans to produce the money, and 'demanded that he should pay in cash the amount of his bid within half an hour, or he would set up the property and sell it again, which he did.'
Then it was that Jeter gave notice of his title, and forbade the sale; and Hewitt & Heron purchased under this notice.
As to the deed made in 1852, so far from importing a recognition of the title of Hewitt & Heron, it would rather signify an admission by them that, at least as to this fragment of forty acres, it required confirmation by a deed from Jeter.