Lobdell v. Union Bank

8 La. Ann. 117

Opinion

Rost, J.

*

(Slidell, J., dissenting.) The plaintiff made opposition to the sale of two slaves, seized in his possession under an order of seizure and salo, at the suit of the Union Bank v. Hereford and wife, on the ground that they were his property, and that the Bank has no right thus to proceed against them, he claims from the Sheriff and the Bank the damages sustained by reason of the wrongful seizure.

The defendants excepted to the jurisdiction of the Court of the parish of East Baton Rouge, on the ground that, although the writ issued from that Court, it was directed to John L. Lewis, the Sheriff of the parish of Orleans, who executed it, and any claim for damages against him must bo brought in the Court where he exercised his functions.

We are of opinion that there is no error in the decree over-ruling the exception. The plaintiff claiming title to the slaves seized, the opposition was properly made by petition to the Court from which the order issued, as required by Article 898 of the Code of Practice; and Article 400 of the same Code expressly provides that, if the sale has not been enjoined, the opposition shall not prevent the Sheriff from selling the property under seizure, but in such case he shall be personally responsible for all damages which the sale may occasion the intervening party, and the Sheriff shall have his recourse against the party who has obtained the order of seizure.

The sale not having been enjoined, the slaves seized were sold, and the right of the defendant to recover damages from the Sheriff in this suit, if the seizure was unlawful, rests on that express provision of law.

On the merits, tho order of seizure issued on two mortgages of Favrot & Joyce, in favor of the Union Bank, and an act of mortgage by Hereford and wife, also to the Union Bank, containing an assumption of tho mortgage of Fmrot & Joyce, and also of a mortgage consented by Charles H. Hiot in favor of the same institution.

The slaves seized in this case are found in none of the acts of mortgage upon which the order of seizure was granted. They are stated to be two of the slaves originally mortgaged by Miot; but there is no certified copy of that mortgage in the record, and its existance is denied by the plaintiff. Considering, as urged in behalf of the defence, that there are facts and admissions in tho record from which its existence may be implied, there is nothing to show that it was authentic and had been properly recorded, and until that showing was made, tho Bank could not proceed by the via execwtica, and the order of seizure and sale was unadvisedly granted without it.

As to the remedy of the plaintiff, Article 400 of the Code of Practice, already cited, provides that if the opposition be sustained, the sale made by the Sheriff shall be null. The law considers all purchasers as affected with notice of the opposition, and the only right it gives to the party making it, besides that of being indemnified for the damages which tho sale may have occasioned him, is to bo restored to the possession of the property, as if no sale had taken place. The value of the property sold forms no part of the damages for which the Sheriff is liable, and the judgment condemning him to pay that value is erroneous.

The plaintiff not having asked to be restored to the possession of the slaves, we can make no final decree on this part of the case.

The slaves seized were taken from the plaintiff on the 16th May, 1851, nearly two years ago, and are shown by the evidence to be valuable men. Taking into consideration this and other facts in the record, we do not consider the allowance of $400 damages, made by the District Court, as being excessive.

It is ordered, that the judgment in this case be reversed. It is further ordered, that the plaintiff recover from the Sheriff, John L. Lewis, the sum of $400 and the costs of the District Court.

It is further ordered, that John L. Lewis recover from the Union Bank of Louisiana the sum of $400 and the costs of the District Court,

It is further ordered, that the plaintiff pay the costs of this appeal, and that his right to recover the slaves Tom Hall and John Carrey be reserved.

EustiSj 0. J., recused himself, being a stockholder in the Union Bank.