75 So. 91 | La. | 1917
On the 29th of December, 1906, Robert S. Bienvenu sold a plantation to Mrs. Maggie B. Platt for $5,827.06. The price was represented by 11 promissory notes executed by Mrs. Platt, payable to her own order, indorsed by her and delivered to Bienvenu. Ten of the notes were for $500 each, maturing, respectively, on the 29th of December of each of the 10 years, commencing in 1907; and the eleventh note was for $827.06, payable 11 years after date. All of the notes bore interest at the rate of 8 per cent, per annum from their date, and were secured by a special mortgage and vendor’s lien on the plantation.
On the same day — that is, on the 29th of December, 1908 — Mrs. Platt leased the plantation to Bienvenu, for the term of 11 years, or, as stated in the contract of lease, for a term to continue until all of the 11 promissory notes held by him should be fully paid,
On the 13th of November, 1908, Bienvenu pledged the 11 mortgage notes to the Capital City Bank of Baton Rouge, as collateral security for a loan of $3,000, made to him by the bank on his note payable in six months. The note due by Bienvenu to the bank" was renewed from time to time, and the debt was increased, so that he remained continuously indebted to the bank for an amount not less than $3,000, and the bank continued to be the pledgee, of the mortgage notes signed by Mrs. Platt, until September, 1913, when the bank instituted executory proceedings against Mrs. Platt and had the plantation seized and advertised for sale.
In October, 1913, Mrs. Platt filed this suit, alleging that the mortgage notes had been paid and extinguished, and she obtained a writ of injunction without bond, under articles 739 and 740 of the Code of Practice, preventing the sale. She alleged, in her petition for the injunction, that Bienvenu was a director and an officer of the bank at the time of the pretended pledge of the mortgage notes, and that the bank therefore acquired the notes in bad faith and with full knowledge of the equities existing between the maker and the original holder.
On the trial of the case, Mrs. Platt attempted to establish her ifiea of payment by showing that the amount due by Bienvenu for rent, in excess of the cost of the improvements made by him, had extinguished the mortgage notes. Bienvenu rendered statements and produced evidence showing that the cost of the improvements made by him, together with the amount paid for taxes on the plantation, exceeded the amount of the rent.
Judgment was rendered against the plaintiff, dissolving the writ of injunction, and allowing the defendant bank $200 for attorney’s fees, as damages for the unlawful issuance of the writ of injunction. The plaintiff has appealed, and, in this court, has filed a plea of prescription of five years.
Opinion.
On the trial of the case, the defendant’s counsel objected to the introduction of any evidence to prove the payment of the notes, on the ground that the bank had acquired them in good faith before maturity. The objection was overruled; and we think the ruling was correct as to the one of the notes that matured before the bank acquired them.
Some of the items on the account rendered by Bienvenu are disputed by Mrs. Platt; but, if the contests as to those items should be decided in her favor, it would not reduce the mortgage indebtedness below the amount due to the bank. In fact, it would not pay the balance of the interest due on the mortgage notes. One of the items contested is the amount of rent due to Mrs. Platt. She contends that the area of the arable land at the time of the lease was 163.87 acres, instead of 152 acres. This would make a difference of only $332.36 in seven years. She also contends that in the amount charged against her for improvements made by Bienvenu is Included the cost of two cabins, which the contract did not authorize him to construct at her expense. His evidence shows that he cleared about 90 acres of land, which enhanced the value of the plantation to the extent of about $3,000: and that this increase in the area of land in cultivation made it necessary to construct two new cabins. Be that as it may, the amount expended for the two cabins is not as much as the balance due by Mrs. Platt for interest on the mortgage notes, even if she were allowed credit for the excess of rent claimed by her. These disputes could only be settled in a suit between Mrs. Platt and Bienvenu, who is not a party to this suit.
There appears to be no dispute as to the amount of the judgment for damages for attorney’s fees incurred for the dissolution of the writ of injunction.
The judgment appealed from is affirmed, at the cost of the appellant.