14 La. Ann. 116 | La. | 1859
This is an injunction sued out by plaintiff, Mrs. Scott, to arrest the execution of a judgment against her husband, which carried siiecial mortgage and vendor’s privilege upon the land and slaves seized under the execution. It appears that between the date of the judgment and of the seizure in execution, Mrs. Scott had become the purchaser at Sheriff’s sale, of the same land and slaves seized at the suit of another creditor of her husband.
There are two grounds stated in plaintiff’s petition for injunction. The first is, that one of the defendants in this suit, W. B. Wood, had waived the pact de non alienando, in his mortgage, by consenting to the Sheriff’s sale of the land and slaves to Mrs. Scott, and consequently could not seize the mortgaged property in her hands without the notices and delays required as against third possessors of mortgaged property.
The second ground of injunction is, that eleven hundred dollars had been paid by petitioner’s husband on account of defendant’s judgment which had not been credited on the execution.
With regard to the first ground, the testimony offered does not establish any waiver of the pact de non alienando on the part of W. B. Wood, even supposing that he had the right to make such a waiver — which he had not.
The judgment upon which the seizure was made was a judgment in favor of William B. Wood and his wife, Catherine M. Harbour, upon a note given by John S. Scott in part payment of this same land and these slaves, purchased by Mm from Pleasant Harbour, the father of Mrs. Wood, and which note came to her in partition of her father’s estate. The.mortgage, with the pact de non alienando, was stipulated in Pleasant Harbour’s sale to Scott, as a security for the punctual payment of this note.-i
The evidence thus shows the note and its accessory, the mortgage, to have been the paraphernal property of Mis. Wood, and that her husband, although nominally plaintiff in the suit and judgment on the note, conjointly with his wife, must be viewed as only appearing therein to assist and authorize his wife.
Upon the second ground of injunction, namely : a partial payment of the debt, no evidence whatever was offered upon the trial.
The judgment of the District Court, dissolving the injunction, must be affirmed; but requires amendment as to its money clause, as suggested by appellees in an answer to the appeal.
Sections 1th and 8th of the title “ Injunction,” in Phillip’s Revised Statutes, p. 241 declare, that on the trial of injunctions of execution of judgments, the surety on the bond shall' be considered a party plaintiff in the injunction suit; and in case the injunction be dissolved, that the court shall condemn the plaintiff and surety, jointly and severally, to pay the defendant in such suit, interest at the rate of eight per cent, per annum, on the amount of the judgment enjoined, and not more than twenty per cent, as damages, unless greater damages are proved. Acts of 1855, p. 325.
The judgment enjoined in this case, bares the highest rate of conventional interest, by its terms ; and under repeated decisions, we are not permitted to add anything to that interest. That judgment, in principal and interest, amounted, at the date of the injunction, to nine thousand dollars and upwards.
We consider this a proper case for the infliction of the full penalty of twenty per cent, damages under the statute; and there has been no proof of damage beyond that amount.
It is, therefore, adjudged and decreed, that the judgment of the District Court be amended; that the injunction herein be dissolved ; and that the principal and sureties in the injunction bond, Sarah Ann Raiford, Auguste Provosty, and James Vignes, in lieu of the damages and interest given by the lower court, be condemned, jointly and severally, to pay to the defendants, William B. Wood and Catharine M. Harbour, eighteen hundred dollars, as damages, with costs in both courts.