15 La. 431 | La. | 1840
delivered the opinion of the court.
The plaintiffs, having obtained an order of seizure and sale of certain property mortgaged, to secure a debt due them by the defendant; defendant opposed the execution of the writ, and sued out an injunction to stay the proceedings until the further order of the court. The principal grounds on which this opposition is founded, are : 1. That the plaintiffs claim to have a mortgage for a larger amount than the mortgage secures, as the interest claimed and costs of protest are not secured by the mortgage. 2. That a part of the original debt having been paid, the balance due is a sum of three thousand six hundred dollars, for which defendant gave a note which must be accounted for. 3. That a copy of the act of mortgage has been made-a part of the petition, and has not been served on the defendant. 4. That no amicable demand has been made. Without answering to the merits of the opposition, plaintiffs obtained a rule on the defendant, to show cause why the injunction should not be dissolved, on the grounds that the affidavit and the matters set forth in the petition for an injunction are insufficient and contrary to law. The parish judge dissolved the injunction, and the defendant appealed..
The affidavit of the defendant appears to bé sufficient; he swears that the “ matters set forth in the petition, are true and correct.” This is undoubtedly within the meaning of article 304, of the Code of Practice ; the facts are fully stated in the petition, and if false, the oath would subject the ■ defendant to the penalties of perjury. 13 Louisiana Reports, page 46.
The grounds on which the injunction was obtained, are not within the 739th article of the Code of Practice, which points out the only reasons for which the sale of property mortgaged by executory process, can be arrested, and are certainly insufficient in themselves to authorize the issuing of the writ:
I. The interest accruing on the principal amount of a debt secured by mortgage, and the costs necessary to enforce it, are also secured by the same mortgage, and are to be paid out of the proceeds of the sale of the property.
II. The taking of a note in renewal of one secured by mortgage, operates no novation, 3 Martin's Reports, 431; the first note having not been surrendered by the creditor, 1 Louisiana Reports, 527; 4 Louisiana Reports, 512. In that case, the plaintiffs have sufficiently accounted for the renewed . ... . . . . . , , note, by filing it with their petition, and showing thereby t^at ai'e shll the holders thereof.
III. There is no law that requires, in executory process, that _ ... 1 ^ 1 a copy or the petition be served on the defendant; a simple notice is sufficient. Code of Practice, article, 734 and 735.
jy. Want of amicable demand cannot authorize the issuing ... & of an injunction to prevent or delay the payment of a debt. this case, the protest of the note, which necessitated a demand of payment, may be considered sufficient to put the t defendant in mora. The order of seizure and sale was granted a few days after the protest.
Under this view of the case, we think the parish judge did not err in making the rule absolute, and dissolving the ... ° injunction.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.
