Campbell v. Oliver , 15 La. Ann. 183 ( 1860 )

VooitniES, J.

The plaintiff in this injunction suit purchased property on a credit of twelve months at Sheriff’s sale. The property thus adjudicated to him being levied upon for the payment of the twelve months bond, he enjoined the execution, on the ground that the adjudication was a nullity.

’The illegality complained of is, that the property was adjudicated to him, without reference to a previous mortgage. The plaintiff alleges that “ no provision was made for the payment of said prior mortgage, but the same stands as a lien and incumbrance on said property, and by means whereof your petitioner has been much vexed and annoyed, and put to great damage and expense.”

Now, it appears that the mortgage in question had been cancelled, on the plaintiff’s own application, the month previous to suing out the injunction. The note secured by this mortgage was prescribed long previously to the adjudication on twelve months credit, unless prescription had been interrupted by partial payment or by some stipulation on the part of the debtor; but nothing of the kind is shown, or even alleged. The extinction of the principal obligation was fatal to its accessory. It must further be observed, that the note is not in evidence ; nor are we informed whether the mortgage, by which it was secured, was or not carried on the certificate of mortgages read at the Sheriff’s sale. Under these circumstances, we cannot arrive at any other conclusion than the one adopted by the Judge of the District Court.

But the judgment must be amended in one particular : interest should not run on the damages allowed; and, as the twelve months bond bears interest at the rate of eight per cent, per annum, damages on the dissolution of the injunction should have been granted at the rate of twelve per cent. only.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended, by striking out the interest allowed on damages, and by reducing the rate of damages from twenty to twelve per cent.; and that in other respects, the judgment be affirmed, the appellee paying the costs of appeal.