11 LA 538 - Muse v. Seeber

Bullard, J.,

¶1delivered the opinion of the court.

¶2This case is intimately connected with that of the same plaintiff vs. Boatner et al., just decided, and may be regarded rather as an incident thereto.

¶3The defendant, who appears as a creditor of John Bostwick in the concurso, for a debt due on mortgage, having taken out an order of seizure against the property in possession of the Boatners, as third possessors, pending the suit of the syndic to annul the transfer of the same property to them, wras enjoined at the suit of the syndic, from any further proceedings, until the question of title should be decided. There was a verdict for the plaintiff, and a judgment maintaining *542the injunction, but reserving to the defendant, Seeber, his right to pursue his claim after the final decision of the case of the Syndic vs. Yarborough et al.; and the defendant has appealed.

The syndic may restrain by injunction, the proceedings of creditors against the property of the ceding debt- or, even in the hands of third persons, and more especially ■when these ere-sented*1 by^'the turn to timbro-perty surrender-CdWhere the husband assists wife, ^"an act prq'ertyfn’ the thing thus mortgaged, is bound

¶4The defence set up, was, that the property mortgaged was the separate estate of Mrs. Bostwick, and that John Bostwick never had any right to it, and that the syndic had no right to interfere. The same questions were, therefore, presented and examined, as in the case of the syndic against the purchasers of the property. They were decided in the same way.

¶5We are of opinion that the syndic was authorized to resort ■to an injunction, in order to maintain the property in controversy, in statu quo, more especially against the proceedings of one of the creditors of John Bostwick, who was represented f|le sync¡¡c hi relation to the property surrendered, J J r

¶6, . The right of Seeber to be paid in the concurso as a mortgage creditor, has been reserved. As to the validity of ^he mortgage upon the property of Bostwick, we think that he having joined in the mortgage, his property thus mort-£a§e(^ *s hound, although a different opinion appears to have been intimated by the judge in his charge to the jury, But we do not consider this a sufficient ground to remand case> because such a question was not fairly presented by the pleadings, and because by the judgment finally rendered, wj10je question was left open.

¶7It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.