8 La. Ann. 462 | La. | 1853
The decision of this cause turns on a question as to the force and effect of a judgment rendered between two of the parties before us, which it is contended, on the part of the appellants, has the authority of the thing adjudged, and settles the controversy in the present suit. The circumstances under which the question arises are peculiar—no cases have been cited as authorities for our guide, and the proper solution of it must depend on the application of the well known general principles of law and the correct interpretation of the provisions of the Code. The plaintiff’s husband on the 29th of November, 1849, made a sale to her of certain property, consisting of houses and lots in St. Martinsville, and ten slaves, for the price of four thousand, five hundred and fifty dollars, which, the notarial act recites, is to be considered as so much of a larger sum due by the husband to the wife for her dotal and paraphernal effects, received by him during the marriage. Felicité Reda, a creditor of the husband, on the 11th November, 1880, instituted a suit against the plaintiff and her husband. P. Lebesque, to set aside the sale thus made to the wife, denying that the husband was indebted to his wife in the amount specified as the consideration of the sale, and charging the sale to be fraudulent and prejudicial to her rights as a creditor of the husband. The wife, who is the present plaintiff, joined issue in that suit, alleged in her answer that she was ready to prove that her husband was indebted to her in a much larger amount than the sum for which she had received from him the transfer of property sought to be annulled, and prayed to be quieted in her title under the sale.
The plaintiff having, under these circumstances, obtained a judgment against her husband for about the sum of one thousand, four hundred and forty-nine dollars, as duo to her over and above the value of the property transferred to her, now seeks by an hypothecary action to render the property purchased by the defendant Kerr, liable for the amount. The defendant, in his answer, de
The defendant sets up also another defence to the action which we think cannot be maintained. He contends that, inasmuch as the price of the property remains unpaid, a creditor seeking to enforce a tacit mortgage has no right to disturb the sale which has been regularly made under the execution of another, but must look to the proceeds in the hands of the suing creditor, which, he says, being in the shape of a twelve months’ bond, not yet satisfied, is within the reach of the plaintiff. We do not understand 'that to be the law'—the creditor with a tacit mortgage may, if he chooses, look to the proceeds of the sale in such a case and enjoin the Sheriff from paying them over, but it by no means follows that his rights cannpt be exercised by pursuing the property itself. That defence was, therefore, properly overruled. It then remains to be decided, what effect in the present controversy is to be given to the judgment in the suit of Felicité Feda against F. Lebesque and his wife. If that judgment is to be considered as res judicata in this suit, it fixes the amount of the plaintiff’s claim against her husband at the sum of $3497 39, of which she has been paid $3025, leaving a balance due to her of only $472 39, instead of $1449, for which she obtained judgment against her husband. The plaintiff contends that the judgment in the suit of Felicité Feda against Lebesque and wife, annulling the first transfer, cannot be considered as a judgment fixing the amount due to the wife. We cannot so consider it. The object of the plaintiff in that suit was to compel the present plaintiff to prove the real amount due to her by her husband, in order to render as much property of the husband, as might remain after satisfying the wife’s claim, subject to the judgment she had obtained against him. Issue was joined between the parties directly on that point, and we are bound to consider that, as between Felicité Feda and Nathalie Judice, respecting the rights of the latter as a mortgage creditor of her husband, the judgment fixed the amount of the rights of the wife, and, not having been appealed from, was final and conclusive. But it is next contended that the defendant, Kerr, not having been a party to that suit, cannot avail himself of the benefit of the plea of res judicata based on that judgment. The principle is well settled that a judgment rendered by a competent tribunal is final and conclusive, not only between the parties themselves, but also as to their successors or ayams cause. See Pothier on Obligations, Nos. 901, 904; Delabigarre v. Municipality, 3d Ann. R. 230. In what relation then does the present defendant stand to Felicité Feda, who was the party plaintiff in the suit in which the judgment was rendered establishing the amount of plaintiff’s rights against her husband ? He derives his title from a sale made under an execution issued on her judgment against Lebesque. He has not paid the purchase money, and if he is evicted from the property, he will not be
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court below be avoided and reversed, and proceeding to give such a judgment as, in our opinion, ought to have been rendered—it is ordered, adjudged and decreed, that the property described in the plaintiff’s petition and in possession of the defendant, be seized and sold to satisfy the sum of four hundred and seventy-two dollars, thirty-nine cents, the balance due to the plaintiff by her husband, P. Lebesque, with interest at the rate of five per cent, per annum from the 25th of June, 1851, and that the costs of this appeal be paid by the plaintiff and appellant, and the costs of the Court below by the defendant.