
    No. 1804.
    A. W. Walker v. F. A. Ducros
    The change of executory proceedings to that of ordinary proceedings, by answer to tbo injunction taken out by the defendant against the order of seizure and sale, will operate a discharge ot the sureties on the injunction bond, and the sureties, having no further interest in the litigation, need not be made iiarties to the appeal from the judgment dissolving the injunction.
    The rule is now settled that where the consideration of the note is part land and movables and pari slaves, tne holder can only recover that portion which is ascertained to be due on the land and movables alter crediting the payments which have been made prior to emancipation, in the proportion that each bears to the entire contract. Saudidge v. Sanderson, 21 An. 757.
    APPEAL from Second District Court, parish of St. Bernard. Dugue, J.'
    ■ Stviribola & JDucros, for plaintiff and appellee. L. Castora, for defendant and appellant.
   Wxly, J.

In 1857, the plaintiff purchased a plantation and movables, together with fifty-eight slaves, in the parish of St. Bernard, for the total.price of $135,000, paying $25,000 cash, and executing to his vendor a scries of mortgage notes.

The defendant being the holder of one of these notes for the sum of $13,333 33, sued out an order of seizure, and sale, and the plaintiff enjoined it upon the several grounds stated in Ms petition of injunction, and Ms amended petitions. The case was before this court in 1866, and was remanded for new trial on a point of practice, as will be seen in 18 An. 703.'

• The judgment appealed from was in favor of tbe plaintiff, dismissing tbe demand of tbe defendant founded on tbe mortgage note, with five hundred dollars damages. Tbe defendant bas appealed. Tbe plaintiff’s counsel ask that tbe appeal be dismissed, without a motion to that effect, because tbe appellant bas. failed to make tbe sureties on tbe injunction bond parties to tbis appeal.

Tbe counsel for tbe defendant, on tbe other band, says tbe sureties bave no interest in tbe matter, tbe character of tbe action having been changed from an executory to an ordinary one.

We find in tbe answer of tbe defendant, filed in September, 1867, this averment: And now converting tbis summary proceeding into an ordinary suit, respondent prays that judgment be rendered,’’ etc.

Again, in tbe answer filed in October, 1867, which was in reply to a supplemental petition of tbe plaintiff, we find tbe following averment: “And persisting in bis determination to change tbis summary proceeding into an ordinary suit,” respondent prays, etc.

We think these statements in tbe pleadings of tbe defendant, changed tbe character of tbe suit to one concerning which tbe sureties on tbe bond are without interest; and being released by tbis voluntary change of tbe defendant, they could not become bound by subsequent statements of tbe defendant.

We think they bave no interest in tbe contestation now before tbe court, and need not be made parties.

. Tbe question on tbe merits is just tbe same as that presented in Sandidge v. Sanderson, 21 An. 757, where tbe consideration of tbe note was mixed, part land and movables, and part slaves.

After considering the learned brief filed by tbe counsel for tbe plaintiff, we have failed to discover sufficient reasons to change our ruling on tbis question. On tbis point the jurisprudence may now be considered settled. Tbe law in force at tbe time tbe payments were made must regulate tbe question of legal imputation. Payments on contracts of tbis character prior to tbe rebellion, in tbe absence of conventional imputation, must be considered as discharging, pro tanto, tbe whole debt.

Tbe debt evidenced by tbe note before us, having a consideration part for slaves, and part for land and movables, may be appertained, and can only be enforced for tbe part which was not for slaves.

As to tbe relative value of tbe land and movables, and tbe slaves purchased by tbe defendant for tbe aggregate price of $135,000, tbe evidence is quite conflicting and unsatisfactory.

Tbe witnesses for the'plaintiff estimate the fifty-eight slaves at tbe aggregate value of $80,000 or $85,000, and tbe land and movables at $50,000 or $55,000. On tbe other band tbe witnesses for tbe defendant estimate tbe value of tbe slaves at $58,000 to $65,000.

After carefully examining the evidence, we have arrived at the conclusion that the relative value of the slaves was about equal to that of the land and movables; and we fix the apportionment accordingly. We think, therefore, that the defendant should have judgment against tho plaintiff for one half the amount of the mortgage note held by him..

It is therefore ordered that the judgment appealed from be avoided and annulled, and it is ordered that the defendant have judgment against the plaintiff for the sum of six thousand six hundred and sixty-six dollars and sixty-six and two-third cents, with interest, at the rate of five per cent, per annum from the twenty-eighth of September,. 1857, till the tenth of December, 1860, and at tho rate of eight per cent, thereafter till paid, according to the stipulations in the note sued on, tho plaintiff paying costs of appeal, and the defendant the costs of the court below. It is further ordered that the mortgage securing, the-note be rendered executory to date from the twenty-eighth of September, 1857, and that the land and movables described in said act of mortgage bo sold according to lawfor the purpose of paying the amount for which the plaintiff may bo liable, according to this apportionment,, for tho remaining purchase price of said property.

Rehearing refused. .

Mr. Justice I-Iowell having been absent at the trial took no part in-, this decree.  