Hynes v. Morin , 12 La. Ann. 742 ( 1857 )

Spoword, J.

The appellant states his case thus:

“ (7. A. Morin, ivas the holder and owner of two promissory notes subscribed by Thomas Hynes, one for the sum of $1,680, the other for the sum of $1,770, and secured both by the same mortgage upon the sa/me property,

“At the maturity of tile first note, to wit: that of $1,080, Morin brought suit upon it, obtained judgment against Hynes and issued a, fi.fa. under which the Sheriff seized the mortgaged property and sold it for $2,400 cash.

“The Sheriff then deducted his costs, amounting to $45 £0, and applied the balance, to wit: $2,354 50, to the payment: 1st. of the outstanding note of $1,770, and 2d, of the writ in his hands which amounted, -with interest and costs, to $1,780 05; thus leaving a balance of $1,204 56, still due under the writ.

“Por the recovery of this balance, Morin issued an alias fi.fa., whicli was enjoined by Hynes, upon the ground that the sheriff ought to have applied the proceeds of the sale to the payment in full of the writ, and that the latter was, therefore, satisfied.”

“The District Judge was of a like opinion and made the injunction perpetual.”

“Prom this judgment Morin has appealed.”

Considering that G. A. Morin, tho holder of both tho mortgage notes, one due and the other not due, chose to tako a judgment by preference on tho one that was due, without, at the samo time, asking for an order that tho property (mortgaged at once to seoure both) bo sold on such terms of credit for the balance as would correspond with the falling duo of the other note, wo think there was no error in perpetuating tho injunction. By the terms of tho judgment, which were of his own seeking, he had secured a preference on the proceeds of the sale forthe payment of the whole of the note then due. However, justly and successfully, a third person might have complained of and intorferred with this judgment, the part}' who procured it had no right to change it. The fl.fa. issued under it should have been first satisfied in full, and the balance held by the purchaser and judgment creditor, Morin, to meet tho other note^w tanto, when it should fall duo,

Judgment affirmed.