Barelli v. Delassus , 16 La. Ann. 280 ( 1861 )

Vookhies, J.

The plaintiffs are third possessors of property, upon which the defendant seeks to enforce a judgment against bis debtor, J. A. Petterin.

This property, which had been purchased in Pellerin’s name from P. Soulé and J. Dominguez, in the months of July and November, 1841, consisted of real estate situated in the city of New Orleans, and used as a cotton press factory. The purchase, although made only in Pellerin’s name, was intended, by verbal understanding to that effect, to inure to the joint benefit of Delassus also. A verbal contract of partnership was entered into between these parties ; and, subsequently by another verbal agreement, they stipulated that the whole property would remain to Pellerin, and that he should allow to Delassus his disbursements for the purchase, and render an account of the partnership.

In the meantime Pellerin executed a mortgage on this property in favor of Ba-relli, who afterwards foreclosed the same, and became the purchaser at Sheriff’s sale. Some time elapsed, and Delassus, who, previously to the giving of Barelli’s mortgage, had sued Pellerin for a settlement of partnership, and subsequently obtained a judgment against him with privilege on this property, proceeded to levy upon it in the hands of Barelli’s heirs.

Hence the present suit, in the nature of an injunction and third opposition. The heirs deny the existence of the mortgage or privilege claimed by Delassus, and contend that their ancestor, a third person, purchased the property free from incumbrances.

The first question is, whether the pendency of the suit in the Circuit Court of the United States operated as a constructive notice to Barelli, at the time he obtained his mortgage from Pellerin.

“ The thing claimed as the property of the claimant,” says the Civil Code, “ cannot be alienated, pending the action, so as to prejudice his right. If judgment be rendered for him, the sale is considered as the sale of another’s property; and does not prevent him from being put in possession by virtue of such-'judg*. ment.” Art. 2428. * /•' ’

A rigid interpretation of the above article would perhaps limit its application to a party instituting the petitory action ; but such is not the true intent an'd spirit. Its provisions extend also to cases of the institution of all real aótjons;'v whether possessory or hypothecary. So it has been ruled in the case of Cautéfe'au v. Lacaze, 9 A. R. 257, in which the Court said : “ The title, under which claims, was acquired pending defendant’s action against his vendor to subject the property to his claim. Under these circumstances an alienation cannot be made to the prejudice of the plaintiff’s right. C. C. 2428; Long v. French, 13 La. 260.”

Nor can the application of article 2428 be limited to the action of State Courts : a suit pending in the Federal Court, holding session in the State of Louisiana, comes within its operation. The law has made no distinction ; nor is there any reason why our Courts should discriminate.

The decisions relied upon by the defendant’s counsel are not in point; for they relate to suits pending in the Courts of sister States, or to Federal Courts held beyond the limits of our own State.

The suit brought by Delassus against Pellerin had for its object the settlement of their partnership concerns. The bill in equity set forth the facts of the verbal agreements as to the joint purchase of property in the name of Pellerin, as to the transfer of the former’s rights of ownership to an undivided half to the latter, and to the formation and dissolution of the partnership. The bill concluded, in the alternative, that the petitioner be decreed to be a joint owner of the property in question, or that there be judgment in favor of Delassus for the whole amount coming to him, including the disbursements made for the purchase money.

The answer of Pellerin to interrogatories on facts and articles, admitted the truth of the allegations in the bill as to the verbal agreements concerning the purchase and partnership ; and judgment was rendered in the Circuit Court as follows, to wit: “ That the plaintiffs have established their claim against the defendant for twenty-two thousand seven hundred and eighty-nine dollars and twenty-nine cents ($22,789 29), with interest thereon at the rate of five per cent, per annum from the ninth of July, 1842, until paid; and that the said debt stand as a privilege upon the land described in the bill, and proved as the land sold by P. Soulé to L. A. Pellerin, by authentic act bearing date 9th July, 1841, before Fe-to Grima, notary public; and that parcel of land purchased in the name of said Pellerin by an act passed before Octave de Armas, notary public of New Orleans, on the 9th day of November A. D. 1841, by Jose Dominguez, and that the said land be sold to satisfy the same, and, in case that the same be insufficient to pay the debt and costs, that said plaintiffs have execution for the remainder.”

This judgment recognizes the privilege of Delassus, as a creditor of Pellerin. The validity or existence of this privileged claim cannot be questioned by the plaintiff, for the reason that this matter is final under the terms of the article of the Code (O. C. 2428). The object of the law would be defeated if he, who purchased during pendency of suit, were at liberty to open again the whole litigation, by merely shifting the onus probandi. The law intends that the creditor shall not thereby suffer any delay; its effect is to prevent the creditor from being, in that respect, at the mercy of the debtor, who might be tempted to do away with, the property in view of defeating the former’s recourse.

The plaintiffs cannot prevent the seizure and sale of the property, which they now hold as third possessors; but they are entitled to recover out of the proceeds the amount which they had to pay of mortgages superior in rank and date to that of the defendant in injunction. 0. C. 3372. All incumbrances created subsequently to the institution of the suit of Delassus v. Barelli, in the United States Circuit Court, do not fall within this ruling, excepting, however, those created by law, such as taxes, &e.

The plaintiffs paid the sum of $3,600, besides interest, the amount of a conventional mortgage given by Pellerin to S. M. Westmore on the 4th day of September, 1846. This mortgage had not become extinguished by novation, as contended for by the defendant. - In the act, by which an extension of time was granted to Pellerin, upon his furnishing another note, it was expressly stipulated that the creditor would keep the former note, and that novation would not take place.

. In decreeing this amount to the plaintiffs in injunction, we must not be understood as precluding them from asserting any other rights which they may have against the property in controversy, by reason of having real charges thereon.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; that the injunction sued out in this cause be dissolved; that the Sheriff proceed to sell according to law the property described in the proceedings, for the purpose of satisfying the privilege of the defendant in injunction, after previously paying out of the proceeds of said sale to the plaintiff) Ba-relli, the sum of three thousand six hundred dollars, besides interest and costs, being the amount of Westmore’s mortgage ; and that the plaintiffs’ rights be reserved as above set forth.

It is further ordered, that the plaintiffs pay the costs of appeal.

Land, J., absent, concurring.