Gerac v. Guilbeau

36 La. Ann. 843

• Court: Supreme Court of Louisiana
• Decided: July 15, 1884
• Docket: No. 1214
• Status: Published

Opinions

The opinion of the court was delivered by

MANNING, J.

The plaintiffs, claiming to be owners of certain lands, injoin the sale of them under the foreclosure of a mortgage given by a former owner after the divestiture of her title.

The lands belonged to Ann Offutt. In 1873 they were sold for taxes, the State becoming the adjudicatee, and in 1881 the plaintiffs bought at a sale by public auction provoked by the State. Both these deeds were recorded. In 1870, several years after the deed to the State, had been recorded, Mrs. Offutt mortgaged the lands to Anderson, and her mortgage note was transferred to a mercantile firm who are the seizing creditors in this instance, and co-defendants with the sheriff.

The plaintiffs had possession under their deed when the seizure was made, and they invoke the protection of that rule which requires a party to proceed by direct action to annul a prima facie valid title, and forbids him seizing in disregard of such title.

This principle has been maintained in a series of decisions and may be considered too well settled to be now called in question. Coco v. Thienman, 25 Ann. 236; Lannes v. Work. Bank, 29 Ann. 112; Jurey v. Allison, 30 Ann. 1234; Ludeling v. McGuire, 35 Ann. 893.

The judgment of the lower court was in accordance with this jurisprudence.

The plaintiffs had prayed in their petition for' damages, by way of attorneys fees, for the expense they were driven to in obtaining the injunction. The low'er judge perpetuated the injunction, but rejected the demand for damages. The plaintiffs have not filed any prayer for amendment of the judgment. The mention of the matter in their brief does not suffice.

Judgment affirmed.