Casson v. Louisiana State Bank

delivered the opinion of the 1 court. In both these actions the plaintiffsin have been seeking to enforce mortgage claims against the estate of John Casson deceased, on property in the possession of third persons, and each has obtained an injunction against . ,. „ , , the proceedings of the other.

... Before enquiring into the regularity and gality of the action thus instituted, and the res- ° _ pective right of the parties in reference to each other, it becomes necessary to examine and decide whether the property which they attempted to seize and sell, did not actually form a portion of the estate of Casson.

Sprigg and Scott were endorsers on certain notes held by the Louisiana State Bank. To secure them against the effects of these en*278dorsements, he made them an absolute convev-anee of a tract of land owned by him in the Par^sh of Rapides, and they on their part, executed in his favor, a certain letter, in which the}? state, that “the conveyance so made to them, was for the sole purpose of securing the said Sprigg and Scott against endorsements—and that whenever the said Casson shall pay and release them from such endorsements, without their having recourse to the said conveyed property, then they would re-convey the same to him for his own use.” It is proved in evidence that the vendors are yet responsible on endorsements to the amount of $1000.

On these facts, we are of opinion, that the legal title is vested in Scott and Sprigg, and that the land so conveyed cannot be considered as making a part of the estate. Taking the act of sale, and the counter letter together, we have in truth presented to us the contract known to in law as the vente a remeré. The condition annexed to the conveyance is dissolving, not suspensive. If Scott and Sprigg are not paid or released from their indorse-ments, the land is theirs, and until that event takes place, it is of course no part of the estate of Casson.

*279These cases have been consolidated in the court below, but we find nothing on an _ , , • i * ination of the record which presents any mat- , ter for our decision. The bank attempted to enforce their lien by an order of seizure and sale. The widow did not approve this proceeding, but prayed that the proceeds of the sale might be enjoined in the hands of the sheriff", until her right of preference could be settled. Previous to the service of the injunction on the bank, they directed a stay proceedings, and no sale has since taken place of the premises. There is consequently no matter presented, on which an issue could be joined. The contestatio litis can only arise on the moneys coming into the hands of the sheriff, under a sale made at the demand of the bank, and without it there is nothing for this court to

It is true the bank has put in an answer to this petition, in which they deny the widow’s right to interfere: the justice and legality of her claims, <^*c. But they had ho right to do this, until the event occurred upon which her claim and theirs would come in contact. Certainly parties cannot call upon the court to try by anticipation, questions of law which *280may ar*se on events, that may or may not take place hereafter. Were we now to decide the po.nt presented by this answer, we might be ~ _ settling matters which may never be contested between the parties, for non constat, that the defendant in injunction will ever execute the order of seizure and sale, or that the moneys in which the plaintiff claims a preference will ever come into the hands of the sheriff

Dismissing therefore from our consideration all the matters growing out of the injunction obtained by the widow against the bank’ we proceed to examine that, in which the relative position of the parties was changed, the bank becoming the petitioners in injunction, and the widow defendant.

In their petition they state the fact of the defendant having taken out an execution on a judgment obtained against her husband in his life time. They complain of the irregularity and illegality of doing so, without reviving it against the estate. They assert that there is other property to which she should resort before selling this, and they pray that further proceedings on her part be enjoined.

To this petition the defendant, among many *281other things, answered, that the plaintiff has no right to interfere—that their lien if superi- or to hers, was on the proceeds, but furnished no authority to stay her execution.

In this position we fully concur. The point has been lately decided in this court. The law requires that property exposed to sale by a sheriff, shall be sold subject to all the privileges and mortgages with which it is bur-thened. The right of the plaintiffs could not therefore be impaired by the sale. Admitting their lien to be of a higher nature than the defendants, she has still a right to have the property sold, for it may bring more than will pay their debt, and her claim to the overplus is undisputed. See vol. 6, 615, code of pract. 679, 683.

Therefore we think the court below erred in making the injunction perpetual against the defendant Casson. It should have been dissolved. And to that granted in her favour as it cannot affect the bank until a sale takes place at their instance, and the proceeds come into the officers hands, no judgment can be pronounced upon it.

It is therefore ordered, adjudged, and de *282creed, that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed, that the injunction granted at the suit of the Louisiana State Bank vs. Casson, be dissolved, the bank paying costs in both cases.