35 La. Ann. 83 | La. | 1883
The opinion of the Court was delivered by
This is an injunction proceeding to arrest and annul an order for executory process, issued to enforce the payment of a note for $5,500, secured by vendor’s privilege and special mortgage on the land sold.
On exceptions and on a rule to dissolve, the injunction was quashed and set aside, reserving defendant’s rights for damages on the bond.
From the judgment thus rendered this appeal is taken. The plaintiffs are two in number: 1st, tlie drawer of the note, who is the purchaser of the land; and 2d, one claiming to be the lessee of the property seized.
The record shows that, after the order of seizure and sale had issued, Carroll, the defendant, sought a devolutive appeal from it. We take judicial notice that in case No. 8,757 we have jnst affirmed that decree.
The syndic of the creditors of the payee of the note sued on in the seizure and sale ease, is the defendant in this injunction, which was sued out after the appeal had been granted.
The petition for an injunction substantially alleges:
1. As to tbe petitioner, Cockerliam, that lie is the lessee for the year 1882 of the land seized, and that he was not made party to the proceedings.
2. As to the petitioner, Carroll, that the order for executory process was rendered upon insufficient evidence ; that the note sued bn was endorsed and transferred by the payee thereof to some third person or persons ; that it was not since re-acquired by him; that the payee, who has failed, did not surrender or assign said note, or include the same in the schedule of his assets in his individual eessio bonorum and assignment made to his creditors; that the plaintiff in the case, suing as syndic of the creditors of the payee, has no title to the note and was without authority to obtain the order for executory process ; that said plaintiff, after said note had been endorsed by the payee, has attempted to erase the signature of the payee thereto, with a view to deprive him, Carroll, of his just defense there against; finally, that the plaintiff in said suit, after the order of seizure and sale had been
The defendant in injunction sought its dissolution by exception and rule, pleading want of interest and no cause of action in Cockerham, the alleged lessee, and Us pendens and no cause of action in Carroll.
The lower court properly ruled that Cockerham had no standing. He is, on his own showing, a mere lessee. He is in a worse possession than a third possessor. He has no right to arrest the sale and ask the nullity of the order for executory process. If he has a valid lease to the property, which was duly recorded previous to the registry of the act of sale and mortgage declared upon, it will be time enough for him to set it up and claim protection under it when the property will have been sold and possession will be asked of him by the adjudicatee, seeking to evict or eject him. Until then he has no right to interfere in those proceedings. 14 An. 47; 25 An. 397; 26 An. 618.
The plea of lis pendens as against Carroll is sustained by the evidence.
The judgment rendered on the appeal taken from the order of seizure and sale shows that the District Judge had sufficient evidence before him to justify his fiat An injunction, besides, does not lie to test questions pendiug on an appeal in the case the judgment in which is enjoined. 25 An. 80, 538; 26 An. 709; 14 An. 656.
Carroll has no authority to stand in court to champion the rights, if any, of the third person or persons to whom he alleges that the payee has transferred the note sued on in the executory proceedings. If that note belong to any such person or persons, the law allows them to set up their title to the same in the proper form. The plaintiff shows a prima fade title to it. A payment to him, by Carroll, will exonerate him to all ends and purposes, and justify the cancellation of the mortgage inscription against the property purchased by him. Zapata vs. Cifreo, 26 An. 87.
Whether the note was or not ever endorsed by the payee, whether the plaintiff has or not erased such signature, if given by the payee, is of no moment. Even if the note had been endorsed and the signature cancelled, as alleged, that would be no ground which the drawer can urge to arrest the sale and annul the order of seizure and sale.
Carroll has not even intimated what the just defenses are, which he says he has, against those third persons.
The intervention or third opposition of the syndic in the case stated was a conservatory measure, necessary or proper to secure the chum, privilege and mortgage, asserted in the executory proceedings which were made the foundation of the intervention. It was not designed
The defendant and appellee has prayed for damages for a frivolous appeal. We think the plaintiffs should be accordingly mulcted.
The District Judge has correctly reserved the rights of the defendant and appellee to claim damages, on account of the wrongful issuance of the injunction, from the plaintiffs and sureties on the bond. Such could not be allowed in this case.
There is no error in the findings of the lower court.
It is, therefore, ordered and decreed that the judgment appealed from be affirmed with five per cent, damages in solido against the plaintiffs on the amount in capital of the note sued upon in the executory proceedings enjoined, together with costs in both Courts.