Vance v. Cawthon ( 1880 )

The opinion of the court was delivered by

DeBlanc, J.

On the 13th of April 1877, Samuel Whitfield Yance subscribed a note, in and by which he promised to pay to the order of the firm of Baphael Kahn & Co. on the 1st of February 1878, the sum of $12,413 40, for necessary supplies, wares and merchandise, which — at the date of the note — had been partly furnished, and were to be furnished, to assist him in raising, on two of his plantations, crops of cotton and corn.

To secure the payment of the advances made and to be made by Baphael Kahn & Co., Yance gave them, on the 13th of April 1877, a mortgage on lands which he owned in the parishes of Caddo and Bossier, and shortly after — on the 18th of May of that year — he died. His widow qualified as the executrix of his will, and — on the 14th of June 1878 — she, in that capacity, acknowledged, in a notarial act, that the succession of her husband, was — at the date of the acknowledgement— indebted to Raphael Kahn & Co., on the note which he had delivered to them in April 187J, for a balance of $5406 68.

On the 11th of December 1878, relying on said mortgage and acknowledgment, Raphael Kahn & Co., obtained from the judge of the 10th district, an order commanding the seizure and sale of the hypothe-cated property, and the execution of that order was enjoined by Mrs. Sarah E. Yance on several grounds, two of which are :

1. That she is one of the beneficiary heirs of said deceased, and — • besides — the creditor of his succession, with legal mortgage, for a claim recognized by a judgment, and which exceeds one hundred thousand dollars.

2. That the note sued upon has been paid, and the mortgage sought to be enforced extinguished by that payment.

On motion of defendants’ counsel, plaintiff’s injunction was dissolved, because — as contended — her allegations did not authorize the issuance of said injunction ; and she and the surety on her bond were condemned to pay special and general damages. They appealed.

Defendants admit that the only question raised and presented by their motion, is “ whether or not the grounds set forth for the injunction ■are, of themselves, sufficient to justify it;” but they add: “we have nothing to do with that part of the prayer of the petition, which asks for judgment decreeing the extinguishment of the debt due defendants,” this — in their opinion — “being a question not to be inquired into in a collateral proceeding, like this.”

Eor the purposes of the trial of their motion to dissolve on the face of the papers, defendants have admitted as true every one-of the allegations on which plaintiff has based the injunction, and two of those allegations are that she is a beneficiary heir of Samuel Whitfield Yance and a creditor of his succession, and that defendants’ claim has been fully satisfied.

We are told that, as beneficiary heir, she is entitled to but a residuary interest in the estate. That is not disputed : neither can it be successfully disputed that, as such, she can — by injunction — prevent one who is not, or who has ceased to be a creditor of the estate, from selling its property, under executory process, to satisfy a claim admitted to have been paid, and a mortgage extinguished by that presumed payment.

We do not contest the correctness of the authorities cited by defendants’ counsel, but they are not applicable to this case. They would be applicable, if plaintiff were merely asking to be paid, by preference, ■out of the proceeds of the enjoined sale. Her remedy would then be by third opposition, or by opposition to the account of the executrix; but she asks more than she could have secured by such a remedy: she denies the very existence of defendants’ claim and mortgage, and charges that they could not legally have obtained an order to sell, on their own conditions — and to her detriment as a beneficiary heir and creditor of the deceased — property which is, in no way, subject to their writ.

If what she charges be true, and — under the pleadings — we are bound to consider it as true, we are at a loss to imagine how we could justify the dissolution of an injunction which — if sustained by proper evidence — would prevent defendants, who — it is tacitly admitted — are not the creditors of the succession of Yance, from selling — as its creditors — the property of that succession, and from receiving — as such — the proceeds of an illegal sale. To do that, we would have, considering that admission, to countenance and sanction that which, until now, we can regard but as attempt to perpetrate a wrong. 30 A. 160 ; 31 A. 493.

It is, therefore, ordered, adjudged and decreed that, as to both plaintiff and the surety on her injunction bond, the judgment appealed from is annulled, avoided and reversed, the dissolved injunction re-instated, and this case remanded to the lower court, there to be proceeded with according to law ; the costs of the appeal to be paid by defendants.