PROVO STY, X
On January 15, 1910, a large body of timber land in the parish of St. Landry was adjudicated at sheriff’s sale to J. E. Dunlap, and he made tender of payment in compliance with his bid. The sheriff thought the amount tendered was not sufficient, and so he recried the property, and adjudicated it to Robert E. Whitmer and C. W. Lamar, and in due course made and recorded a deed in their favor.
On June 30, 1913, in a suit brought by Dunlap, this court annulled the said adjudication and deed to Whitmer and Lamar, and ordered the tender of payment made by Dunlap to be accepted, and a deed to be made in his favor. Dunlap v. Whitmer, 133 La. 317, 62 South. 938, Ann. Cas. 19150, 990.
Dunlap deposited in court the amount of the ténder, and cited all parties appearing of record as having mortgages or privileges upon the property to appear and litigate their claims upon the said fund contradictorily with each other, and to show cause why the property should not pass to him free of said incumbrances.
Among these parties so cited were Whitmer and Lamar, who held mortgages upon the property. They in their answer to this citation alleged that they had paid the taxes of the years 1910, 1911, and 1912 upon the property, while it stood of record in their name pending the suit of Dunlap against them to have the adjudication and deed made by the sheriff to them annulled, and that these payments had been thus made for the preservation of the property, and should be reimbursed to them, not out of the funds deposited, but out of the pocket of Dunlap, the owner of the property, to whose benefit the payments had inured, and they prayed for personal judgment against' him, and they prayed further to be recognized as having, for the security of said reimbursement, the privilege which the state and parish had for the payment of these taxes, and that the said property be decreed to have passed to Dunlap subject to said privilege.
The case was appealed to this court, and a personal judgment was rendered by this court against Dunlap as thus prayed; but no notice was taken by this court either in its opinion or in its decree of that part of the said prayer asking for said privilege. The court, however, decreed that the reimbursement of said taxes was secured by the privilege accorded by article 3226 of the Civil Code to him who has incurred expenses for the preservation of the property of another. Dunlap v. Whitmer, 137 La. 792, 69 South. 189.
The date of this judgment was June 29, 1915; and the date of its recordation in the mortgage book of the recorder’s office of the parish of St. Landry was July 6, 1915.
Meantime, by an act passed and duly recorded on April 9, 1915, Dunlap had sold the property to Leonce M. Soniat, the plaintiff in the present suit.
On July 19, 1915, Whitmer and Lamar caused a writ of fi. fa. to issue against Dunlap upon said judgment, and caused said property to be seized and advertised for sale to satisfy said judgment.
Soniat then brought the present suit, enjoining the said seizure, on the ground that his property cannot be seized to satisfy a debt of Dunlap, and that, if Whitmer and Lamar have a privilege upon said property which entitles them to proceed against it, they must do so by the hypothecary action, and not by a direct seizure.
[1] A third possessor can, of course, be proceeded against only by the hypothecary action, not by direct seizure; but this is not true where the third possessor acquired the property pending the litigation in which the judgment sought to be enforced was rendered, and after notice of the pendency of the litigation had been conveyed to him by due registry as prescribed by law.
[239]*239Whitmer and Lamar contend that Soniat stood in close friendly and business relations with Dunlap, lending him large sums of money upon this very property, and must have had full knowledge of the pendency of said suit, and therefore must be held to have taken the property subject to said privilege.
[2] Whether actual knowledge of the pendency of a suit can in any case be made to take the place of notice conveyed by the registry of a notice of lis pendens as prescribed by Act 22, p. 25, of 1904 is a question which need not be considered in the present case, for two very peremptory reasons:
First, that Soniat testifies that at the time of his acquisition he had no knowledge of the pendency of any suit in which a privilege was being demanded on said property, and there is no reason for not believing him; and,
Second, that by the decision in McDuffie v. Walker, 125 La. 152, 51 South. 100, and many subsequent decisions, the once vexatious question of whether the purchaser of real estate can be affected by unrecorded claims against the property, even though at the time of the purchase he had actual knowledge of them, has been settled in the negative—let us hope forever. Soniat took the property, therefore, free of said privilege.
[3] Whitmer and Lamar invoke also the privilege which the state and parish had for the payment of these taxes. This privilege was duly recorded as an effect of the filing of the assessment rolls in the recorder’s office, and the inscription has never been canceled. The contention is that by operation of law, or in other words, by legal subrogation, Whitmer and Lamar succeeded to this privilege when they paid the taxes, and that by virtue of this privilege they have the same right which the state and parish had to proceed directly against the property regardless of any transfers that had been made of it.
The answers to this contention are obvious.
First. Article 2161, C. C., provides in what cases legal subrogation takes place, and the payment of these taxes is not one of them. The point that legal subrogation does not take place in favor of the third possessor who pays taxes assessed to him was expressly decided in Succession of Erwin, 16 La. Ann. 132.
[4] Second. Whitmer and Lamar prayed for the recognition of this privilege in the suit itself in which the judgment now sought to be executed was rendered; and the trial court expressly rejected the demand. This court amended the judgment in certain particulars, and otherwise affirmed it; and the denial of this privilege was not one of the respects in which the judgment was amended. Besides, the mere passing over this demand in silence was a rejection of it.
“The silence of the judgment on any demand which was an issue in the case under the pleadings must be considered as an absolute rejection of the demand.” Villars v. Faivre, 36 La. Ann. 398.
[5] The trial court allowed Soniat $1,500 damages for attorney’s fees for procuring the setting aside of the .seizure.
Whitmer and Lamar deny that this is such a case as calls for the allowance of any damages for attorney’s fees, in view of the fact that, if error there was in the seizure of said property, it was an error of counsel, and an honest error induced by the judgment of this court, which recognized the privilege upon the property.
Honest or not, the error made it necessary for Soniat to employ counsel for protecting his property from a seizure under a judgment to which he was a total stranger, and the burden of this expense must fall either upon Whitmer and Lamar, who by their fault caused it, or upon Soniat who is entirely blameless in the matter.
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PROVO STY, X
On January 15, 1910, a large body of timber land in the parish of St. Landry was adjudicated at sheriff’s sale to J. E. Dunlap, and he made tender of payment in compliance with his bid. The sheriff thought the amount tendered was not sufficient, and so he recried the property, and adjudicated it to Robert E. Whitmer and C. W. Lamar, and in due course made and recorded a deed in their favor.
On June 30, 1913, in a suit brought by Dunlap, this court annulled the said adjudication and deed to Whitmer and Lamar, and ordered the tender of payment made by Dunlap to be accepted, and a deed to be made in his favor. Dunlap v. Whitmer, 133 La. 317, 62 South. 938, Ann. Cas. 19150, 990.
Dunlap deposited in court the amount of the ténder, and cited all parties appearing of record as having mortgages or privileges upon the property to appear and litigate their claims upon the said fund contradictorily with each other, and to show cause why the property should not pass to him free of said incumbrances.
Among these parties so cited were Whitmer and Lamar, who held mortgages upon the property. They in their answer to this citation alleged that they had paid the taxes of the years 1910, 1911, and 1912 upon the property, while it stood of record in their name pending the suit of Dunlap against them to have the adjudication and deed made by the sheriff to them annulled, and that these payments had been thus made for the preservation of the property, and should be reimbursed to them, not out of the funds deposited, but out of the pocket of Dunlap, the owner of the property, to whose benefit the payments had inured, and they prayed for personal judgment against' him, and they prayed further to be recognized as having, for the security of said reimbursement, the privilege which the state and parish had for the payment of these taxes, and that the said property be decreed to have passed to Dunlap subject to said privilege.
The case was appealed to this court, and a personal judgment was rendered by this court against Dunlap as thus prayed; but no notice was taken by this court either in its opinion or in its decree of that part of the said prayer asking for said privilege. The court, however, decreed that the reimbursement of said taxes was secured by the privilege accorded by article 3226 of the Civil Code to him who has incurred expenses for the preservation of the property of another. Dunlap v. Whitmer, 137 La. 792, 69 South. 189.
The date of this judgment was June 29, 1915; and the date of its recordation in the mortgage book of the recorder’s office of the parish of St. Landry was July 6, 1915.
Meantime, by an act passed and duly recorded on April 9, 1915, Dunlap had sold the property to Leonce M. Soniat, the plaintiff in the present suit.
On July 19, 1915, Whitmer and Lamar caused a writ of fi. fa. to issue against Dunlap upon said judgment, and caused said property to be seized and advertised for sale to satisfy said judgment.
Soniat then brought the present suit, enjoining the said seizure, on the ground that his property cannot be seized to satisfy a debt of Dunlap, and that, if Whitmer and Lamar have a privilege upon said property which entitles them to proceed against it, they must do so by the hypothecary action, and not by a direct seizure.
[1] A third possessor can, of course, be proceeded against only by the hypothecary action, not by direct seizure; but this is not true where the third possessor acquired the property pending the litigation in which the judgment sought to be enforced was rendered, and after notice of the pendency of the litigation had been conveyed to him by due registry as prescribed by law.
[239]*239Whitmer and Lamar contend that Soniat stood in close friendly and business relations with Dunlap, lending him large sums of money upon this very property, and must have had full knowledge of the pendency of said suit, and therefore must be held to have taken the property subject to said privilege.
[2] Whether actual knowledge of the pendency of a suit can in any case be made to take the place of notice conveyed by the registry of a notice of lis pendens as prescribed by Act 22, p. 25, of 1904 is a question which need not be considered in the present case, for two very peremptory reasons:
First, that Soniat testifies that at the time of his acquisition he had no knowledge of the pendency of any suit in which a privilege was being demanded on said property, and there is no reason for not believing him; and,
Second, that by the decision in McDuffie v. Walker, 125 La. 152, 51 South. 100, and many subsequent decisions, the once vexatious question of whether the purchaser of real estate can be affected by unrecorded claims against the property, even though at the time of the purchase he had actual knowledge of them, has been settled in the negative—let us hope forever. Soniat took the property, therefore, free of said privilege.
[3] Whitmer and Lamar invoke also the privilege which the state and parish had for the payment of these taxes. This privilege was duly recorded as an effect of the filing of the assessment rolls in the recorder’s office, and the inscription has never been canceled. The contention is that by operation of law, or in other words, by legal subrogation, Whitmer and Lamar succeeded to this privilege when they paid the taxes, and that by virtue of this privilege they have the same right which the state and parish had to proceed directly against the property regardless of any transfers that had been made of it.
The answers to this contention are obvious.
First. Article 2161, C. C., provides in what cases legal subrogation takes place, and the payment of these taxes is not one of them. The point that legal subrogation does not take place in favor of the third possessor who pays taxes assessed to him was expressly decided in Succession of Erwin, 16 La. Ann. 132.
[4] Second. Whitmer and Lamar prayed for the recognition of this privilege in the suit itself in which the judgment now sought to be executed was rendered; and the trial court expressly rejected the demand. This court amended the judgment in certain particulars, and otherwise affirmed it; and the denial of this privilege was not one of the respects in which the judgment was amended. Besides, the mere passing over this demand in silence was a rejection of it.
“The silence of the judgment on any demand which was an issue in the case under the pleadings must be considered as an absolute rejection of the demand.” Villars v. Faivre, 36 La. Ann. 398.
[5] The trial court allowed Soniat $1,500 damages for attorney’s fees for procuring the setting aside of the .seizure.
Whitmer and Lamar deny that this is such a case as calls for the allowance of any damages for attorney’s fees, in view of the fact that, if error there was in the seizure of said property, it was an error of counsel, and an honest error induced by the judgment of this court, which recognized the privilege upon the property.
Honest or not, the error made it necessary for Soniat to employ counsel for protecting his property from a seizure under a judgment to which he was a total stranger, and the burden of this expense must fall either upon Whitmer and Lamar, who by their fault caused it, or upon Soniat who is entirely blameless in the matter. We think it should fall upon Whitmer and Lamar. In Iberia Cypress Co. v. Thorgeson, 116 La. 218, 40 South. 682, this court, after citing Ludeling v. Garrett, 50 La. Ann. 118, 23 South. 94, [241]*241White v. Givens, 29 La. Ann. 573, and Commission Co. v. Yale, 47 La. Ann. 696, 17 South. 244, said:
“In all three of the cases cited there was an unlawful seizure of property under a writ of fieri facias. Such cases are exceptions to the general rule that a plaintiff in injunction is not entitled to recover attorney’s fees as an element of damages.”
[6] Soniat complains that the $1,500 allowed is not enough, and Whitmer and Lamar that it is too much. We will allow $500 for the counsel fees in this court.
The property is valued at $175,000.
It is ordered, adjudged, and decreed that the judgment appealed from be amended by increasing to $2,000 the amount allowed for damages, and that as thus amended it be affirmed ; Whitmer and Lamar to pay the costs in both courts.