Citizens' Bank v. Knapp

Howeix, J. Mrs. Knapp procured a stock loan from the plaintiff, and, to secure the payment of the note given therefor, mortgaged a sugar plantation in Pointo Coupee, and pledged her stock- in said institution. In January, 1856, she sold said plantation and bank stock to Ponce Colomb, who specially assumed the payment of said stock loan note, and all the responsibilities of the ownership of said shares of tlie capital stock so pledged. Colomb paid the annual installments on the note up to April, 1861. In April; 1866, this suit was instituted on the note and assumpsit against both defendants, who severed in their defense — Mrs. Knapp pleading prescription and novation, and Colomb pleading the prescription of five and ten years. Pending the suit, tlie defendant sold the engine and machinery on the plantation to Patín & Cazayoux, who removed the same; whereupon plaintiff filed a supplemental petition, charging said vendor and vendees with fraud, and prayed that the latter ho made defendants; that the said engine, machinery, etc., bo decreed subject to and sold under said mortgage? and that the said vendees be condemned in solido to pay two thousand dollars damages. Judgment was rendered against Mrs. Knapp, and also subsequently in favor of the other three narties. From this latter judgment nlaintiff appealed. The defendant, Colomb, is evidently liable on his assumpsit. He specially recognized the pledge of the hank stock transferred to him with subrogation, and assumed to pay the note for which the pledge was given, “putting himself expressly in the place and stead of said Mrs. Knapp.” Tlie continuing interruption of prescription thus caused by the pledge binds him, and he is personally liable for the debt. No exception being- taken by Patín & Cazayoux to the proceeding herein against them, the questions are presented: First — Whether or not the machinery purchased and removed by them during the pendenev of this suit must he considered subject to the mortgage; and, Second — Whether or not they are liable in damages'? 1. The first question, it seems, must he answered in the negative. [118] When detached or separated from the sugar house, and removed from tho plantation, these things became again movables, and did not pass to the third or purchasers subject to the mortgage, not being, as movables, susceptible of mortgage. C. C. 3256. Their susceptibility of mortgage existed only while they remained as placed by the owner, to bo used in carrying on the plantation works. C. C. 459. 2. The liability of the purchasers for damages depends on their good or bad faith, and tho fact whether or not damages are proven. Their knowledge that the articles purchased by them were, at the date of their purchase, immovables by destination,- and subject to the mortgage on tho plantation, may establish bad faith; but unless it is alleged and proven that damage was actually sustained by the plaintiff, the mortgagees, in consequence of their act, none can be recovered of them. It would bo a case of “ damnum absque injuria.” There is no proof of any damage in this case, but the judgment should be one of nonsuit as to these purchasers. It is therefore ordered that the judgment appealed from be reversed, and that plaintiff recover of the defendant, Ponce Colomb, the sum of six thousand eight hundred and twelve dollars, with ten per cent, interest thereon from third of April, 1861, with costs. It is further ordered that there be judgment on the supplemental petition in favor of Hubert Patin and Clair Cazayoux, as of nonsuit, with costs. The costs of appeal to bo paid by appellees, P. Colomb, H. Patin and C. Cazayoux.