28 La. Ann. 359 | La. | 1876
A. J. Dyas, a judgment creditor of W. L. Morgan & Co., caused seizure to bo made under execution of a house and lot in the town of Pinevillc as property of his debtors. Chovallier, the plaintiff in this injunction suit-, set himself up as the owner of tho property thus seized, and enjoined tho sale of it on that ground.
Tho defendant denied that plaintiff ever owned the property seized, and prayed a dissolution of the injunction and for one hundred and fifty dollars special damages. The jury before whom the case was tried
The mercantile firm of W. L. Morgan & Co. was composed of W. L. Morgan and Mrs. Jane Hooper, wife of Church Hooper. In this case, the husband was introduced as a witness on behalf of the plaintiff, and objection being made and overruled, a bill of exceptions was taken, the ground being that husband and wife are not allowed by law to testify for or against each other. Here the controversy is between the plaintiff and the seizing creditor as to the ownership of the property seized. W. L. Morgan & Co. are not parties to this controversy. They set up no title to the property, and have no interest in the result. We think tho evidence was admissible. A second bill of exceptions was taken to tiro refusal of tho judge to permit the jury to prove that their verdict was really for the plaintiff, and that the word “ defendant” was written in the verdict through error instead of “jDlaintiff.” The ruling was correct. 11 La. 141; 12 An. 3.
A third bill of exceptions was taken to the admission of Chovallior, the plaintiff, to show title to the real estate in dispute by parol evidence. The plaintiff first established that tho public records of the parish of Rapides were destroyed by fire in tho year 1864, and ho swears -that his title to this property was destroyed by that accident. The testimony was admissible under that state of facts.
There are two other bills of exceptions in the record, which it is unnecessary to pass upon in the decision of this case. The evidence, we conclude, preponderates in favor of the plaintiff. He swears that he acquired title to this property in the year 1833 or 1834 from one Tally, and that he has been in possession of it ever since; that at the time of the seizure tho property was not rented; that he sold the property to C. Hooper for eight hundred dollars, of which five hundred dollars were paid, but no title was ever made, as the contract was that title should bo made when the remainder of the price was paid; that Hooper failed to pay the remainder of the price.
Labat, a witness, swore that he had known the property for thirty years, and that Ohevallier was the recognized owner of it, and that ho has been in possession of it ever since. Hooper swears that, finding himself unable to pay finally for the property, he proposed to give it back, and that Ohevallier in consideration that ho had paid two hundred' dollars, and had re-covered and weatherboarded the house, agregd that Hooper might occupy the house four years free of rent, on condition the latter would pay the taxes and keep up the general repairs on the property; and it is for this reason that the property was assessed in the name of his wife. That no title was ever made to this property either to himself or to his wife.
It is therefore ordered that the judgment of the district court be annulled and reversed. It is further ordered that there be judgment in favor of the plaintiff, recognizing him to bo the owner of the property in controversy as against the defendant, and that the injunction be per-. petuated, tho defendant and appellee paying costs in both courts.
