Phillips v. Kathman-Landry, Inc. 244 La. 686, 154 So.2d 363 Facts 1. 2. 3. 4. 5. 6. 7.

Phillips purchased a certain portion of property together with the improvements in Jefferson Parish, Louisiana for $1,300.00. 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. The sheriffs process vrbal deed stated that other than the vendors lien, there were no mortgages and liens existing against the property. 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. Phillips filed suit against Kathman-Landry, Inc. alleging discovery of the lien and payment for $715.52. 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 by Defendant. The trial court entered judgment against the plaintiff stating that plaintiff should have sought to have the sale set aside since this lack of knowledge vitiated his consent. However, the court held that if it were to find in favor of the plaintiff, the court would be unjustly enriching the plaintiff at the expense of the defendant. The Court of Appeal reversed on the basis of CCP Art. 2379 and 2381 holding that the plaintiff was entitled to reimbursement of undisclosed superior liens which could be sought against the judgment creditor or judgment debtor.

8.

Issue Whether Kathman-Landry, Inc. was the proper part against whom Phillips must proceed against in order to 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 as proper 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 that defendant 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 the relator the recourse against the judgment debtor. Thus, all defendant has to do is take advantage of 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 judgment debtor is an indispensable party.