Burland v. Carrollton Bank , 14 La. 189 ( 1839 )

Morphy, J.,

delivered the opinion of the court.

The defendants appear before us as appellants from a judgment maintaining and rendering perpetual an injunction sued out by the plaintiff, to prevent the sale of a tract of land belonging to him, and seized to satisfy a judgment obtained by the defendants against one James B. Rusk, their debtor. They contend that the plaintiff’s petition, praying for an injunction, is vague and insufficient; that, under its allegations, no evidence could be received to prove the seizure of plaintiff’s property. It cannot be denied that the petition has been drawn up with great looseness and want of precision, but the defendants, in their answer and other pleadings, having been sufficiently technical to secure their damages in case of success, whatever may be vague in the plaintiff’s allegations, is rendered certain by the aver-ments of defendants, and they exhibit the not very uncommon occurrence, in our courts, of one party unconsciously assisting his adversary. We think that, under all the pleadings, as presented by the record, the material parts of the evidence have been properly admitted. We must, however confess that we do not well understand how it can have been the interest of the defendants to resist the introduction of evidence to prove the seizure complained of by-the plaintiff. The injunction stays the proceedings of defendants, in their suit against Rusk, their debtor, only in relation to this property of the plaintiff: if no seizure of it had taken place, there was nothing for the plaintiff to enjoin. The defendants would not appear to have been estopped, and therefore, in case of a dismissal of the plaintiff’s petition, no damages could have been awarded them, as prayed for in their answer.

a sale, having f'le'gat 'saiTby authentic act, cannot be treated as a nullity, even ieged¡ud *S al"

As to the merits, the plaintiff has proved that he is the owner of the property seized by virtue of an authentic act executed before the seizure. The sale to plaintiff cannot be 1 # treated as a nullity, and his property cannot be seized to satisfy a judgment against his vendor, even in case of fraud, which is not alleged here; although some testimony is to be found in the record, tending to establish it. The defendants would be obliged to resort to the action. which the law gives to creditors, to set aside sales made by their debtors, with a view to defraud them. 5 Martin, N.S., 361.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.