US SUPREME COURT DECISIONS

1. Although in Louisiana informalities which occur in a sheriff's proceedings under execution may, if taken advantage of in due time, be good ground for annulling a sale made by him, yet if he, being thereunto authorized, sells the land and executes a deed therefor to a bona fide purchaser, the latter, in an action against him to recover the land, commenced after five years from the time he entered into possession, can set up the statutory prescription.

2. The failure of the sheriff to actually seize the property is cured by the possession of such a purchaser for five years.

3. Under the laws of Louisiana, a deed of property from a person having authority to sell is regarded as a just title for the purpose of prescription.

This is a petitory action brought to recover a certain plantation in Louisiana. The plaintiff (now defendant in error) claimed the land under an act of donation from her uncle, Ackley Perkins, passed the 5th of September, 1861. Perkins had purchased the land at sheriff's sale made Aug. 3, 1861, under a vendor's lien, and gave a twelve-month's bond for the purchase money. One Williams, and William S. Pike, the defendant below (now plaintiff in error), were his sureties on this bond. The bond not being paid, a writ of fieri facias, under the laws of Louisiana, was issued upon it against the goods and lands both of Perkins and his sureties. The sheriff, under and by virtue of this writ, sold the plantation in question on the 6th of January, 1866; and Pike, to save his own property and to protect himself against his liability as surety, became the purchaser, paid the encumbrance, and went into possession on the day of sale. He had been in possession over five years chanrobles.com-red

Page 94 U. S. 7

when this action was brought, and, amongst other things, pleaded prescription of one, three, and five years.

On the trial of the cause, the plaintiff having proved the act of donation from her uncle, Ackley Perkins, on which she relied, and the previous purchase of the property by him at sheriff's sale in August, 1861, the defendant gave in evidence the twelve-month's bond executed by Perkins and his sureties for the purchase money at said sale, the fieri facias issued thereon in October, 1865, and the sheriff's deed to him dated Jan. 6, 1866, and introduced evidence tending to show that he, the defendant, had been in possession of the property in question for a period of five years, and that he purchased the property at the sheriff's sale, and thereupon he asked the court to charge, that if the jury found that he had been in possession for a period of five years, and that he purchased the same from any person authorized to sell at public action, then any informality connected with or growing out of the sale was cured by the lapse of five years. The court gave the instruction asked, but added, "If the sheriff did not seize the property, that is an informality which is not cured by possession for five years." The counsel for the defendant excepted to this modification.

There was a judgment for the plaintiff below, whereupon the defendant sued out this writ of error. chanrobles.com-red

Page 94 U. S. 8