
    Stanbrough v. M’Call.
    "Where an order of seizure and sale, issued for the amount of a noto secured by mortgage and containing tho pact da non alienando, is enjoined by a third person, alleging himself to be the owner of the pu-operty mortgaged by a purchase since tho date of the mortgage, who after a judgment rendered against Mm in tho first instance, protracts tho litigation by repeated appeals, such third person cannot avail himself cf the time which elapsed while tho plaintiff was thus judicially restrained from prosecuting his action, as part of the period necessary to extinguish the note by prescription. Par Cilriam: One who, under tho pretence of rights which have been adjudged to be unfounded, unlawfully uses the process of a court to restrain another in the prosecution of a right, cannot avail himself of the delay, which his own wrong has occasioned, to defeat that right.
    One to whom a note belonging to a succession has been transferred, by the Curator, irregularly, and to the detriment of the creditors or heirs of tho deceased, will ho considered as a trustee for them, but his possession of the note, as holder, will enable him to sue, for the purpose of arresting prescription.
    from the District Court of Madison, Selby, I.
    
      Thomas, Snyder, Bemiss and Stacy, for the appellant.
    
      Stockton and Steele, for tho defendant and opponent.
   The judgment of tho court was pronounced by

Súdele, J.

The plaintiff has been endeavoring, for seven- years, to enforce his rights as a mortgage creditor upon a tract of land. In this protracted litigation he was at first opposed by Collier, represented by Stockton, as his counsel; and subsequently, by Stockton, in his own right.

This suit was commenced in 1842, by an order of seizure and sale, upon a note which fell, due in January, 1842, and which, with two others, was given by M’Call to his vendor, David Stanbrough, curator of the succession of Jesse I-Iarper. To secure these notos M’ Call gave a mortgage, with a covenant de non alienando. Notice of the order of seizure and sale was served upon M’Call. Collier obtained an injunction against the execution of the order of seizure and sale, alleging that he was himself tho owner of all tho notes, having purchased them at a sale by the marshal of the United States; and also that, Josiah Stanbrough had no title to the note, because David Stanbrough, the curator of the succession of Harper, and who was the payee of the note, had no authority to transfer it. In that controversy thero was judgment in favor of Josiah Stanbrough, which was affirmed by the Supreme Court of this State, in 1843; and by the Supreme Court of the United Stales, in 1848. In that litigation, Stockton was the attorney and counsel of' Collier. See this case as reported in 6 Rob. 433, and 6 Ploward, p. 14.

In 1846, Stockton brought a suit, in his individual name, against David Stanbrough, curator, in which, after reciting that the curator had possession and claimed the ownership of the two other mortgage notes, and was proceeding upon them by order of seizure and sale, he alleged that he, Stockton, had become the owner of the three notes, by assignment from Collier, in 1843; that M’Call was insolvent, and that the land was his only security for the debt. Upon these allegations Stockton obtained an injunction, arresting the execution of the writ of seizure and sale obtained by the curator.

After the final decree, in 1848, by the Supreme Coiiirt of file United States in favor of Josiah Stanbrough, and before any mandate or decree of the Supremo Court of the State, restoring the jurisdiction of the District court with regal'd to Collier’s case, had been recorded in the District court, Stockton appeared in the present suit, by third opposition, and presented a new obstacle to the prosecution of the order of seizure and sale, obtained in 1842, and which had been suspended during seven years by tho injunction obtained by Collier. The grounds alleged in tho opposition are, that Stockton had become the owner of the mortgaged promises by the purchase from Compton, in January, 1847, who purchased from M’Call in January, 1842; that the note, upon which the order of seizure and sale was obtained, was extinguished by prescription; and that David Stanbrough, curator, had no authority to transfer the note. There was judgment in favor of Stockton; and from that judgment the plaintiff prosecutes the present appeal.

From the facts which we have stated it results that, from 1842, down to at least 1848, the plaintiff was judicially restrained from prosecuting his suit; and this restraint, from September, 1843, must be considered file personal act of Stockton. For although he acted at first only as the counsel of Collier in the injunction obtained by him, Stockton became, by the assignment of Collier, the real plaintiff in injunction, and must be considered, from the date of tho assignment, as the true party who prosecuted the suit in the court below, who took a suspensive appeal to the Supreme Court, and afterwards carried the cause by writ of error to the Supreme Court of the United States. If. Collier had not arrested the plaintiff in the execution of the order of seizure and sale, and Stockton, succeeding to his rights, had not continued this judicial restraint, the plaintiff would, years ago, have obtained a sale of the land and received its proceeds. Tho question then presents itself whether one, who, under pretence of rights which have been adjudged to be unfounded, has unlawfully used the process of a court of a justice to restrain another in tha prosecution of a right, can avail himself of the delay which his own wrong has occasioned to defeat that right? An affirmative answer to this proposition would involve principles shocking to reason and natural justice. It is equally repugnant to authority.

It has been said, in argument, that, in the prescription liberandi causa, good faith is not required. As the general rule, this is true. C. C. 3515. The man who knows that, he has not paid a debt may plead prescription. In doing so, he offends good conscience; yet the law,, acting upon considerations of public policy, forbids the creditor to put him on his oath, and compel him to declaro whether the debt has been paid or not. But the rulo has its exceptions. Thus, if having confidence in my debtor, I hand him the evidence of my debt, in order that he may attempt to collect it from other parties who are also bound to me, and my debtor should-take advantage of my confidence and withhold it from me, upon false pretences, until the “delai liberatoire” had elapsed, he would not be permitted to escape, upon the pleaof prescription, becauso, by his own wrong, he had prevented me from, acting. See Nougior, Des Lettresde Change, vol. I, p. 61. See also Troplong^ Prescrip. § 646.

The rule that, he who thus paralizes the right of another shall not benefit by. his own act to prescribe against that right, is not peculiar to our own jurisprudence ; but, as it has its foundation in reason and justice, we find it adopted as a principle of equity in England and in the, United- States. In; Putney v. Warren, 6 Vesey, 73, it was held that where a party applies to a court of equity, and carries on an unfounded litigation, protracted under circumstances and for a length of time, which deprives his adversary of his legal-rights, the court of equity considers that it should itself supply and administer, within its own jurisdiction, a substitute for that legal right, of which the party so prosecuting an unfounded, claim has deprived his adversary. See the East India Co. v. Cumpron, 11, Bligh. 158 &c. Story’s Equity, vol. 2, 1526.

The ,appellee questions the validity of the transfer of the note by David’ Stanbrough, curator, to Jesse Stanbrough, who endorsed it to the plaintiff, on, the ground that it was the property of a succession, and that no judicial authorization for the transfer has been proved. If the transfer was made irregularly, and to the detriment of the, creditors, or heirs of the succession, the plaintiff-would be deemed a trustee for them; but his possession, as holder, would certainly enable.him to act, for the purppse of-arresting prescription.

In order that the opponent may be protected from any further disturbance by, the succession of Harper, if he should think proper to pay the debt, and that the, proceeds of the mortgaged property, if sold, may go to the party really entitled to, them, we.will malee provision in our decree.

It is decreed that the judgment of the court below, upon the opposition ot Stockton, be reversed; that the plaintiff have leave to proceed in the execution of the order, of seizure and sale; that the proceeds of the sale of the mortgaged property-, described in the plaintiff’s petition be brought by the sheriff into court, fordistri-. button, contradictorily .with the succession of Jesse Harper, upon due notice given to the proper representative of said- succession; and that, if the said Stockton. desires to pay the amount of the mortgage, claim, ho. may deposit the same in court, subject to the order of the court, to be rendered contradictorily with said-succession of Jesse Harper. And it is further, decreed that, said Stockton pay the qosts of this appeal-; and, that the costs oí the opposition in the court below, be, paid by the plaintiff. 
      
      This opinion was pronounced in March, but suspended by the application lor are hearing. In March, alltho judges wore present.
     