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Phillips v. Kathman-Landry, Inc.244 La. 686, 154 So.2d 363

Facts

1. Phillips purchased a certain portion of property together with the improvements in Jefferson

Parish, Louisiana for $1,300.00.2. The sale was the result of a writ of seizure and sale issued in executory proceedings entitled

Kathman-Landry, Inc. v. Beulah Lee Jones Butter, et al in the 24 th JDC.3. The sheriffs process vrbal deed stated that other than the vendors lien, there were no

mortgages and liens existing against the property.4. However, at the time of the sale and recordation of the deed, there existed a sewerage lien

from 1956 in the name of Lillian T. Lewis, the ancestor in title to the Butters.5. Phillips filed suit against Kathman-Landry, Inc. alleging discovery of the lien and payment

for $715.52.6. Defendant filed exceptions of no cause and no right of action, which exceptions required

plaintiff to amend his petition. Plaintiff amended 15 days after the filing of the exceptions byDefendant.

7. The trial court entered judgment against the plaintiff stating that plaintiff should have soughtto have the sale set aside since this lack of knowledge vitiated his consent. However, thecourt held that if it were to find in favor of the plaintiff, the court would be unjustly enrichingthe plaintiff at the expense of the defendant.

8. The Court of Appeal reversed on the basis of CCP Art. 2379 and 2381 holding that theplaintiff was entitled to reimbursement of undisclosed superior liens which could be soughtagainst the judgment creditor or judgment debtor.

Issue

Whether Kathman-Landry, Inc. was the proper part against whom Phillips must proceed against in orderto recover payment of an undisclosed and unknown sewerage lien discovered by Phillips after the

Sheriffs sale?

Holding

Yes, Kathman-Landry, Inc. was proper party since Kathman-Landry, Inc. failed to join the Butters asproper parties defendant.

Rules and Analysis

LSA R.S. 13:338113:3386, which entitles a defendant to bring in any person who was its warrantor,or who was or might be liable to defendant for all or part of the principal demand.

LSA CCP. Arts. 1111-1116 Demand Against Third Party (similar to above law).

The Supreme Court affirmed the judgment of the Court of Appeal. In doing so, it determined thatdefendant failed to take advantage of the aforementioned laws. In failing to take advantage,defendants are liable to plaintiff for the amount. However, the court of appeal reserved to therelator the recourse against the judgment debtor. Thus, all defendant has to do is take advantageof the reservation and it can recover the sum its required to pay plaintiff.

Dissent

Case should be remanded to require the joinder of the judgment debtor the action in that the judgmentdebtor is an indispensable party.

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