Labouisse v. Orleans Cotton Rope & Manufacturing

The opinion of the court was delivered by Watkins, J. On the 5th of May, 1890, plaintiff obtained judgment against the defendant for $12,500, with interest, and thereunder issued execution, and by seizure and sale of property realized the sum of $19,500. On the 5th of June, 1890, Eugene Soniat, syndic of the creditors of J. B. Lallande, filed a petition of intervention and third opposition, claiming a vendor’s lien on the property and its proceeds, whereby the said insolvent succession is alleged to be1 entitled to be paid the amount of certain judgments, and in preference to the plaintiff in execution, and other creditors of defendant. To this petition the plaintiff in execution filed an exception of no cause of action. This exception was regularly set down for trial, and due notice thereof was given to the syndic. On. the day fixe'd, the exception was tried_ and sustained, and the intervention dismissed. . From this judgment the syndic appealed suspensively. The ground on which the intervenor and third opponent claimed a vendor’s lien is “that each and every part of the property of said [246] company was purchased and paid for with the funds of” the insolvent. Wherefore its averment is that it is entitled to be paid in preference'to plaintiff as seizing creditor. It is manifest that on this showing intervenor and third opponent has no vendor’s lien whatever. The fact alleged that the company’s property was purchased and paid for, albeit, with the funds of the insolvent, is a conclusive admission that there was no vendor’s lien upon it. If the insolvent purchased the property for the defendant, he surely was not the vendor; and if he paid for it, there was no lien upon it. Succession of Benjamin, 39 An. 612. This ground of the intervention failing the third opponent, it is useless to consider others. The appellee answered, and claimed damages for a frivolous appeal. Dealing, as we are, with an insolvent’s estate, we are not disposed, to allow his demand, while it may be that the right of appeal has been abused. The funds have not been tied up for more than six months, and the record discloses that other creditors were contesting, at the same time, and successfully, plaintiff’s right to payment in full from the funds by preference. Judgment affirmed.