Mary v. Lampré

6 Rob. 314

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

Opinions

Martin J.

Lampré is appellant from a judgment perpetuating an injunction obtained by the plaintiff, to prevent the sale of a lot of ground which she claims as her property, to satisfy a judgment in favor of the appellant against Kokernot & Co ; the District Court, having been of opinion that the evidence did not show who were the members of the firm against whom the judgment was obtained, or that Louis Kokernot, the plaintiff’s vendor, was one of them. The grounds upon which the judgment of the District Court rests, have not been urged by either party in this court. Indeed, they do not appear to us tenable. Louis Kokernot is at least, prima facie, one of the defendants in a judgment obtained against Louis Kokernot & Co.; and on a fi.fa. issued on such a judgment, the Marshal can well seize a lot which appears on the records of the Register of Conveyances to have been acquired by Louis Kokernot, and does not appear to have been alienated by him. The plaintiff contends that she is the owner of said lot, which she shows to have been purchased by her from Morgan, to whom it was sold by Bertrand, who had bought it from Kokernot. She shows that the sale from Bertrand to Morgan, and that from Morgan to her, have been duly recorded in the office of the Register of Conveyances. But the defendant shows, that the sale by which Kokernot acquired the lot was duly recorded ; that no sale from Kokernot was recorded until the 20th of November, 1839, at which time the mortgage resulting frcta the record, by the Recorder of Mortgages, of the defendant’s judgment against him, gaveihim a mortgage on the lot; consequently, as to the defendant, Kokernot was the owner of the lot on the 11th of December, 1838, when the judgment against him was recorded. Till then, his sale to Bertrand had no effect against the defendant, who was a third party. The judicial mortgage then bore on the lot, and was not destroyed by the subsequent record of Kokernot’s sale to Bertrand, registered on the 20th of November, 1839, nearly one year after ; nor by the registry of Bertrand’s sale to Morgan, and that of Morgan to Rey, although the first of these was registered a ’few daystbefore the judgment; because Bertrand’s title did not ripen until that of his vendor was divested, a circumstance which did not happen until a long time after the record of the judgment had affected it with a judicial mortgage.

It is, therefore, ordered and decreed that the judgment be annulled and reversed ; that the injunction be dissolved; dnd that the appellant recover from the appellee damages at the rate of five per cent on the amount of the judgment, the execution of which has been enjoined, with interest at the rate of five per cent, and the costs in both courts.