Boner v. Elgee

6 Rob. 6

• Court: Supreme Court of Louisiana
• Decided: October 15, 1843
• Status: Published

Opinion

Bullard, J.

The plaintiff seeks to enforce the privilege of a vendor upon certain slaves, sold by him to one Malhé, and which are now the property of the defendant, who resides in the parish of Rapides. The petition, which is addressed to the District Court, in and for the parish of Caddo, where the slaves were at the time, sets forth the sale to Malhé by act before the Parish Judge of Natchitoches, then the acknowledged domicil of the purchaser; that Malhé afterwards confessed a judgment in favor of the defendant Elgee, and waived appraisement of the slaves, whereupon they were sold at a Sheriff’s sale and purchased by Elgee. This judgment is alleged to be fraudulent and collusive. After various other allegations, which it is not necessary to repeat, the petition concludes with a prayer, that Elgee may be cited, and that the plaintiff may have judgment ordering the sale of the slaves, to satisfy the balance of $5825, still due him as vendor, together with $100, for costs incurred in previous attempts to seize the slaves, and for further and general relief.

The defendant pleaded his domicil in the parish of Rapides, and excepted to the jurisdiction of the court.

Admitting that' a mere order of seizure and sale might issue against slaves from the court of the parish where they are employed, rather than that of the domicil of the owner, which we do not decide, yet it is clear, that this case is something more. The District Court for the parish of Caddo, is asked to decide upon the question, whether the privilege of a vendor still exists in favor of the plaintiff, and whether the defendant had acquired a bonafi.de title to the slaves, and whether he was liable for any damages, or costs in consequence of the plaintiff having been baffled in the pursuit of his rights. These are questions to be settled by the court previously to the seizure of the slaves. It is one thing, to issue an order of seizure and sale, a mere summary execution, upon the presentation of authentic evidence of a mortgage, and another to decide between the parties upon the validity of such title, or the priority of another alleged to be better.

The court therefore erred, in our opinion, in not sustaining the exception, and in proceeding to a trial upon the merits. The questions presented by the petition, are such as the defendant had a right to have tried by the court of his domicil. Such a case, in our opinion, does not form an exception to the general rule.

It is, therefore, ordered, that the judgment of the District Court be reversed ; that the plea to the jurisdiction be sustained, and the suit dismissed; the plaintiff paying the costs in both courts.