Reboul's Heirs v. Behren

9 La. 90

• Court: Supreme Court of Louisiana
• Decided: January 15, 1836
• Status: Published

Opinion

Mathews, J.,

delivered the opinion of the court.

In this case it appears that the defendant had obtained a judgment against the heirs of Reboul, for the price of a tract of land sold to their ancestor, part of which remained unpaid at his death. Execution issued on that judgment, aiid the said tract of land was seized and finally sold ,on a twelve months’ bond, for an amount sufficient to satisfy the judgment' .and costs. One of the heirs was the purchaser, and gave his mother (who held property in community with them) as surety on the bond. They failed to pay the amount secured by the instrument, when it became due, and an execution issued against them, as provided for by law. The same , property was levied on, but did not sell for enough to satisfy the debt. Another execution then was sued out against the obligors in the bond, and property was seized belonging jointly to them and the other heirs of Reboul, and still held in community. These heirs brought the present suit, in which they pray an injunction to prevent the sale of their interest J r J J r ... *n ^e ProPel'ty seized; this was granted, but the injunction was afterwards dissolved, and from the judgmentof dissolution, , , J o they appealed.

The sale of property on a twelve months’ bond does not merit"oi^wh'i'ch the execution sued, or novate the debt. And ty whiehwasori-and1 llysoide*Zon twelve months’ íess'üianthe^-mount of the bond given at the first sale, aty of*^he obu-may "be*seized and sold to satis- Property held in common cannot he sold under an execution tife mTOers^Only the interest of the deiendants in execution can. soldfandanin-the°ri|hts of tile other owners tainedbe mam’

R is true, as claimed on the part of the appellee, that the of the property on the twelve months’ bond did not satisfy his judgment or novate the debt, and the course pursued by him to obtain satisfaction by seizing the property principal and surety in the bond, is correct; and their interest in the community property, may be rightfully seized and sold. But in pursuing them, he is not authorised to cauge to be sold the interest of the other heirs: and had the ... 7 sale proceeded without their interference, their rights to the property would not have, been divested, by the mode of proceeding adopted in the present instance, the execution being against the parties to the bond on whom it operated as a judgment. The plaintiff in execution, should he fail to obtain his debt from these parties, may resort for redress to all . „ _ . , . the heirs of Reboul on his original judgment m the manner prescribed by law, the sale on credit being neither satisfaction nor novation. See the case of Williams vs. Brent, 7 Martin, N. S. 217-18. But in our opinion, he has no right to touch the property of the other heirs in the present mode of Procee(^ng- The judgment of the court below is, therefore, erroneous in dissolving the injunction absolutely. The sheriff ought to have been suffered to proceed to sell the interest in the property seized, of the principal and surety to the bond, reserving that of the plaintiffs in the present suit for future investigation.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled, and it is further ordered, adjudged and decreed, that the injunction be reinstated and maintained, so far as the plaintiffs and appellants are interested in the property seized, until the rights and claims of the obligors in the twelve months’ bond be sold, as directed by the writ of execution; reserving to the defendant and appellee, his right to pursue on the original judgment, should he fail to obtain satisfaction in the present mode of pursuit, and that the appellee pay the costs of this appeal.