Offut v. Monquit

2 La. Ann. 785 | La. | 1847

The judgment of the court was pronounc'ed by

Kins, J.

The commercial firm of Dupre, J'ubertie Tinet, while in liquidation, received, under an execution, a twelve months’ bond executed by the defendants. On the day on Which the bond was taken it was transferred to the plaintiff, in part satisfaction of a larger sum which he, as endorser for the firm, had paid. At the time of the transfer Tinet Was dead, and his succession represented by Jub'erlie, as administrator. Some months after the transfer, Miramond, a judgment creditor of “ Jubertie, executor,” caused an execution to issue, in virtue of which this bond was, as, it is contended, seized. P'revious to the alleged seizure, the attorney of Miramond was notified of the transfer, but persisted in instructing the officer to seize. On the day of the sale, the sheriff, when offering the bond, proclaimed that' it had been transferred, notwithstanding which the defendant M'onquit, the principal obligor, purchasedit. The plaintiff claims in this action the amount'off the'bond, and the defendant Monquit sets up in defence that the seizure of the sheriff and his adjudication to her were legal, and tHat'b’y reason of her purchase the bond has been extinguished. A judgment was rendered'in favorof the plaintiff, from which the defendants have appealed.

We are satisfied from tlie evidence tliaf, no legal seizure of the bond Was ever effected. That instrument appeals to have remained in the possession of the plaintiff, from the' date of his purchase'until the commencement of this suit. The sheriff so far from having been in possession of it under the writ, was unable to describe it in his notices. In an attempt at a description he omitted the date, and left its amount in blank. We have lately held that the sheriff can only seize such effects by obtaining' actual'' possession of the object levied upon. Fluker v. Bullard, ante 338.

The defendant, under the defence' set up, can onlysuecessfully resisfthe claim of the plaintiff by showing the superiority of her own title to the bond, and in this she has failed. She not only purchased with a previous notice of the transfer to the plaintiff, but acquired at a sheriff’s sale-made without a previous seizure. The plaintiff, who is the holder of the bond, may legally enforce its payment,-as faiyat all events, as relates-to the parties to this controversy.

Judgment affirmed,,-