Opinion of the court. adjudication thus made has, of itself alone, the effect of transferring to the purchaser all the rights and claims which the party in whose hands it was seized might have had to the thing adjudged. Other sections are equally suggestive on this point. * The courts of Louisiana hold the seizure to be essential, and that a sale without it fails to transfer title to the purchaser. In the case of Goubeau v. New Orleans and Nashville Railroad Company, it was held that in order to make a legal and valid seizure of tangible property from which the seizing creditor may acquire a privilege in the thing seized, it is necessary that the sheriff should take the object seized into his possession; and the mere levying of an execution upon property found in the hands of the debtor, or of a third person, without showing that the sheriff took it into his actual possession, at least when he levied the writ, is not sufficient to confer any right on the creditor. This doctrine is affirmed in Simpson v. Allain,† in Fluker v. Bullard,‡ Offut v. Monquit,§ Taylor v. Stone,|| Gaines v. Merchants' Bank.¶ The cases here referred to are mostly cases of personal chattels, or securities. But the same doctrine has been held in regard to lands. In the recent case of Corse v. Stafford,** which was a petitory suit to recover a tract of land and plautation claimed by the plaintiff under a sheriff's sale, it was held that the sale was void because no actual seizure bad been made. It appeared in that case, that the sheriff did no more than go on the plantation, read the writ to the partics, and give them notice of seizure, without doing anything else to indicate a seizure. The court said: "Under the sheriff's sale, we think, the plaintiff did not acquire title, because it was never taken into the possession of the sheriff, and, therefore, that he cannot maintain his petitory action. It has frequently been decided that a sheriff's sale, without a valid seizure, confers no title."+t * 6 Robinson, 348. Ib. 785. ** 24 Louisiana Arnual, 263. † 7 Robinson, 504. 2 Annual, 338. ¶ 4 Id. 870. †† 11 Annual, 761; 12 Id. 275; 19 Id. 58; 22 Id. 207; 23 Id. 512. Opinion of the court. The case of Corse v. Stafford, it is true, arose under an order of seizure and sale. But the same rule was held by the Supreme Court of Louisiana in 1856, in the case of Williams v. Clark,* with regard to sales under fieri facias. The plaintiff in that case claimed the land in question under a sheriff's sale made by virtue of a fieri facias issued on a judg ment upon an attachment; and, whilst the judgment was held void on account of a defective citation, and of the fact that the attachment was set aside, the sale was also held void, because "no valid seizure was made of the property adjudicated." "The defendant," say the court, "at the date of the constructive seizure, and ever since, has been in actual possession of the property; no attempt was made to dispossess him. The defendant cannot be held to a constructive notice of an invalid seizure. A purchaser at a sheriff's sale, made without a previous seizure, acquires nothing, at least against a third party in possession." These are cases where the validity of the sale was assailed in a collateral proceeding. Instances are still more numerous in which actions of nullity have been sustained on the same ground.† That the person in possession should be actually turned out of possession, in order to constitute a valid seizure, is not understood to be necessary. But, under the rulings of the Supreme Court of Louisiana, it does seem to be necessary that there should be some taking of possession more than a mere constructive taking; perhaps a yielding to the sheriff's demand, and a consent to hold under him, on the part of the person in possession, is all that is required. As this is a pure question of local law, we feel bound to follow the decisions of the highest court of Louisiana on the subject; and, according to those decisions, it seems clear that there was no valid seizure in this case. We think, therefore, that for the failure to make any actual seizure of the land, the sale was void. * 11 Louisiana Annual, 761. † See, amongst others, cases before cited; and see Kilbourne v. Frellsen, 22 Annual, 207. Opinion of the court. In such a case as the present the importance of actual seizure is particularly obvious. The defendant was no party to the action brought on the mortgage. He knew nothing about it. Had his lot been seized by the sheriff, as it ought to have been, his attention would have been called to it. The seizure would have been notice. He could then have protected himself. The pact de non alienando relieved the plaintiff from the necessity of making Watson a party to his action; but it did not relieve him from the necessity of pursuing the forms of law in making a compulsory sale. * This very question arose in a recent case, in which the Supreme Court of Louisiana say: "We concur with the plaintiff, that the insertion in the act of mortgage of the pact de non alienando does not invest the mortgage creditor with the right to disregard the forms of law in making the forced alienation of his debtor's property. . . . The advantage of this clause is to save the mortgage creditor the necessity of resorting to the delays of the hypothecary action. He can proceed to enforce his mortgage directly against his mortgage debtor, without reference to the transferee of that debtor. But still the transferee is subrogated to his vendor's right by virtue of the purchase, and has sufficient interest in the object of the contract of mortgage to sue to annul the sale, if the forms of law have not been complied with by the mortgage creditor of his vendor in making the forced sale.” By the same reason, and according to the cases abore cited, he has the right in a collateral proceeding, to set up, by way of defence, the failure to follow those forms. It has been suggested that the defendant could not go behind the sheriff's return to the writ of fieri facias. Had this return been duly authenticated by the sheriff's signature, as required by the code, perhaps there might have been plausibility in this objection; though under the Louisiana practice it would be very doubtful. But the return was incomplete * Villa Palma v. Abat and Generes, 21 Annual, 11. Syllabus. and presents no record evidence of the sheriff's acts. We think the return under the circumstances was, at least, traversable, and that it was properly shown that no actual seizure of the property in dispute was ever made by the sheriff. JUDGMENT REVERSED, and A VENIRE DE NOVO AWARDED. DUPASSEUR v. ROCHEREau. 1. When, in a case in a State court, a right or immunity is set up under and by virtue of a judgment of a court of the United States, and the decision is against such right or immunity, a case is presented for removal and review by writ of error to the Supreme Court of the United States under the act of February 5th, 1867. 2. In such a case, the Supreme Court will examine and inquire whether or not due validity and effect have been accorded to the judgment of the Federal court, and if they have not, and the right or immunity claimed has been thereby lost, it will reverse the judgment of the State court. 8. Whether due validity and effect have or have not been accorded to the judgment of the Federal court will depend on the circumstances of the case. If jurisdiction of the case was acquired only by reason of the citizenship of the parties, and the State law alone was administered, then only such validity and effect can be claimed for the judgment as would be due to a judgment of the State courts under like circumstances. 4. Judgment was rendered by the Circuit Court of the United States for Louisiana on a vendor's privilege and mortgage, declaring it to be the first lien and privilege on the land; and the marshal sold the property clear of all prior liens; and the mortgagee purchased, and paid into court for the benefit of subsequent liens, the surplus of his bid beyond the amount of his own debt. This judgment and sale were set up by way of defence to a suit brought in the State court by another mortgagee, who claimed priority to the first mortgage, and who had not been made a party to the suit in the Circuit Court. The State court held that the plaintiff was not bound by the former judgment on the question of priority, not being a party to the suit. The case was brought to the Supreme Court of the United States by writ of error, and this court held, that the State court did not refuse to accord due force and effect to the judgment; that such a judgment in the State courts would not be conclusive on the point in question, and the judgment of the Circuit Court could not have any greater force or effect than judgments in the State courts. Statement of the case. ERROR to the Supreme Court of the State of Louisiana; the case being thus: Pierre Sauvé, of the city of New Orleans, being indebted to one Rochereau, of the same place, in the sum of $35,000, executed on the 26th of February, 1858, an authentic act of mortgage to him before a notary public, for the security of the debt, upon a sugar plantation in Louisiana, above New Orleans, with all the farming utensils, machinery, cattle, and slaves belonging thereto. The mortgage, shortly after its execution, was duly recorded in the proper office of the parish. On the 15th of- March, 1866, Rochereau obtained judg ment against Sauvé in the Sixth District Court of New Orleans for the debt with interest and costs, with a recognition of the special mortgage. On the 7th of June, 1866, Rochereau commenced an action in the same court against Edward Dupasseur, by a petition setting forth the said judgment and the act of mortgage, and the failure of Sauvé to pay the same, and alleging that Dupasseur had taken possession of the plantation as owner thereof, and charging that the same was bound for the debt, and that Dupasseur was bound either to pay the debt or to give up the plantation, and praying process aud decree accordingly. Dupasseur, in his answer, set up the following defence: "That be purchased the property described in the plaintiff's petition at a salo made by the marshal of the United States, in virtue of an execution issued on a judgment rendered by the Circuit Court of the United States for the Eastern District of Louisiana, in the case of Edward Dupasseur v. Pierre Sauvé, free of all mortgages and incumbrances, and especially from the alleged mortgage of the plaintiff; that the marshal's sale was made in virtue of a judgment based on and recognizing the existence of a superior privilege and special mortgage to that claimed by the said plaintiff; and that the whole of the proceeds of said sale was absorbed to satisfy the judgment in favor of this respondent, except $15,046, which are in the said marshal's hands, subject to the payment, pro tanto, of the plaintiff's mortgage." |