Diggs v. Green

15 La. 416

• Court: Supreme Court of Louisiana
• Decided: May 15, 1840
• Status: Published

Opinion

Morphy, J.,

delivered the opinion of the court.

This case commenced by an order of seizure and sale-sued out by plaintiff, against a ¡piece of property he had sold to defendant. Before this proceeding took place, one J. Wright -had proceeded by attachment in the Parish-Court, against the defendant, a non-resident, and had obtained a judgment for four hundred and nine dollars and forty-one cents, with privilege on the property for work and labor done and.materials furnished, in making banquets and gutters in front of the lot. .’Some time after the sale of the property,-which was adjudicated to the plaintiff, Wright took a rule on the latter and the sheriff, to show cause why the amount of his judgment -should not be paid by preference, out of the proceeds of the .property sold. This rule was made absolute and the plaintiff appealed.

He has contended here, that the rule came too late; a •settlement between him and the sheriff having already been made when it was taken.; that the suit being thus at an end, -no opposition or intervention could take place.

It appears from the evidence, that the plaintiff was apprized by the sheriff of the existence of this real charge on the property, and promised several times to satisfy it. This circum■stance accounts for the delay of Wright on taking his rule, >and explains why the sheriff made a settlement with (he plaintiff, without insisting on the payment into his hands of a sum sufficient to discharge this privileged claim.

The plaintiff, having-bought in his property at a price very -inferior to that he had sold it for, after having received a large amount of cash, -refuses, with a bad grace, to pay a ■ claim for improvements which greatly enhance its value;,; ■ and for which the law secures a lien and privilege. Louisiana Code, articles 3216, 2747.

It is, therefore, ordered that the judgment of the 'District ¿Court be affirmed, with costs.