Armstrongs v. Baldwin , 13 La. 564 ( 1839 )

Rost, J.

delivered the opinion of the court.

The petitioners gave their three several promissory notes to the order of, and endorsed by, J. R. Pully to one Henry C. Myers, for the purchase of real estate. Their vendor retained possession of the estate under a lease, and moreover bound himself to transfer to them sixty shares of the stock of the Citizens’ Bank, secured by mortgage upon it; which transfer he has failed to make. Myers pledged their notes to the defendant before they became due, as collateral security on a purchase of town property. The defendant took an order of seizure upon the first of those notes, and the real estate for which they had been given was seized and advertised to be Sold. The plaintiffs alleging that Myers was justly indebted to them in the sum of seventeen hundred dollars for rent and damages for having failed to transfer the stock, enjoined the sale and prayed that the defendant might be ordered to allow them in compensation the sum they claimed, and that he might further be inhibited from all further proceedings, until Myers had transferred the bank stock to them.

A party must be put in default before damages can be claimed for the non-compliance of a reciprocal obligation. Where an act of pledge transfers to the pled-gee all the pled-gor’s rights and interest to certain notes, secured by mortgage, subrogating him to all his rights of proceeding by the executory process to enforce payment of the notes, the pledgee may have his order of seizure and sale in the-same manner as the pled-gor could have had.

The defendant pleaded the general issue, and the case having been tried in the first instance, the injunction was made perpetual without prejudice to the rights of the defendant to institute all suits for the same cause of action, in the name of H. C. Myers, and for the use of the creditors of the insolvents he represented. The defendant appealed.

The three notes of the plaintiffs were negotiable, and the evidence shows that they were pledged to the defendant before their maturity. Not being at that time due and demandable, no compensation could take place between them and the plaintiffs’ claim for rent. If the notes had been due, the damages could not have been compensated with them, because they were not liquidated, and because moreover the plaintiffs have failed to show that they had put Myers in default.

The district judge was of opinion that the defendant could not take an order of seizure in his own name, but must proceed in the name of Myers, for the use of the creditors of the insolvents he represents.

The plaintiffs pray for no relief on that account, and if they did, it appears to us that the act of pledge fully justifies the proceeding of the defendant. It provides that if the notes are not paid at maturity, JWyers transfers to the defendant all his rights under the act of mortgage, and subrogates him particularly to all his rights of proceeding by executory process to enforce the payment of the notes by seizure and sale of the mortgaged premises. This provision precludes the idea that proceedings were intended (o be carried on in the name of Myers. The necessary effect of the subrogation is to put the defendant in his place. The plaintiffs had no cause of action and the judgment must be reversed.

It is therefore ordered and adjudged, that the judgment of the district court be avoided and reversed and the injunction dissolved, with costs in both courts ; and interest at the rate of ten per cent, per annum on three thousand dollars, from the 12th January, 1838, till paid.