
    No. 8391.
    People’s Bank of New Orleans vs. T. H. Ballowe.
    Where an injunction issues against executory process, on the ground of extension of time by the plaintiff, the debtor’s evidence must be positive and precise to show such fact. It will not otherwise be entitled to weight, particularly when contradicted by two disinterested witnesses, whose testimony was even superfluous in this case.
    When a vendee redeems property sold, from forfeiture to the State, by paying the taxes due thereon, he cannot set up against this unpaid vendor that his privilege and mortgage have been extinguished hy the forfeiture.
    The privilege was dormant and revived. The debtor cannot keep both the property and the money.
    In case of appeal from the dissolution of such an injunction, damages will he allowed for a fiivolous appeal.
    APPEAL from the Twenty-fourth Judicial District Court, Parish of Plaquemines. Livau&ms, J.
    
      13. Howard MeOaleb, for Plaintiff and Appellee :
    1. Injunction after injunction cannot lawfully issue from the same court, arresting execution upon the same, or even on different grounds — otherwise a creditor could he perpetually baffled by his debtor, and the administration of jastice become a mockery and a by-word. 12 A. 197-613.
    2. The defendant arresting the execution of a writ of seizure and sale, on the ground that time had been given bim for paying the debt, should distinctly aver the length of time, or the duration of the delay on which he relies. Vague and indefinite allegations are insufficient to support an injunction. The facts relied upon should be clearly set forth. 11 A. 613 ; 4 A. 473 ; 7 A. 290.
    3. The burden of proof rests upon him who has the affirmative of any issue. JEiincumbit probatio, qui dicit, non qui negat. H. D. Evidence, Vol. Ill, p. 495; Louque, p. 237.
    4. Testimony of witnesses, taken under commission in a previous suit between the same parties, for the same cause of action, where there has been an opportunity for cro^sexamination, are admissible if the witnesses are absent or cannot be produced. 4N. S. 449 ¡ 7 N. S- 267, 283 ¡ 1 L. 320; 15 L. 43; 1 A. 391.
    
      o. An agreement for indulgence, without consideration, is a mere nudum pactum, invalid and not binding. § 157, Daniel on Negotiable Instruments; Parsons on Bills and Notes, Vol. 2, pp, 528-530.
    6. The laws relating to the forfeiture of property for non-payment of taxes will not be ex. tended so as to assist a vendee in thwartin'g his vendor, and thereby evading the payment of the price of property which he admits he owes. 27 A. 209.
    
      7. Even if a mortgage be extinguished by the forfeiture of the property to the State, because of the non-payment of taxes, as soon as the mortgagor redeems and reacquires the property, the mortgage revives and reattaches to it in his hands. It. C. C. 3282, 3304; 16 A.' 225; 14 A. 587. The forfeiture was not irrevocable, and hence, on redemption, the mortgagee’s rights upon the property revive. Pothier De E’Hypothéque, Chap. Ill, § 2.
    8. A tax title acquired by a mortgagor enures to tlie benefit of the mortgagee. Blackwell on Tax Titles, Eo. 999, and cases there cited; 30 An. 853.
    
      T. A. Flanagan, for Defendant and Appellant:
    Depositions taken in another case which was never at issue, cannot bo used in a subsequent case, even between the same parties, and partly involving the same issues, where other counsel is employed, who had no opportunity to cross the interrogatories and no notice of the intention to use them by a rule to show cause wli¿ they should not be used in the latter case, as required by Article 439, C. P.
    Where a mortgagee has been induced to expend large sums of money on the property mortgaged. under a promise of extension, or further time to pay, made at the maturity of the note, the mortgagor is estopped from foreclosing, and may be enjoined until the expiration of the time promised.
    Where property under a conventional mortagage has been forfeited to tbe State for back taxes, under Act 96,1877, and the time for redemption expires without the exercise of that right, either by tbe morfcagor or mortgagee, the mortgage is extinguished and dead, and a subsequent payment of the taxes, under the provisions of the Constitution of 1879, did not revive the mortgage which, once dead, is always dead.
   Tlie opinion of the Court was delivered by

Bermudez, C. J.

Tbe defendant appeals from a judgment dissolving an injunction taken by him to arrest, for a second time, the seizure and sale of his property, ordered to pay the vendor’s notes sued on.

In Ms first injunction, he claimed that time had been allowed Mm by tbe plaintiff. That injunction having been dissolved, on account of tbe insolvency of Ms surety, he procured another one,,based on the same ground, advancing further, that tlie privilege and mortgage claimed had ceased to exist, owing to a purchase which be averred he had made of the property, from the State, by redeeming it from forfeiture, on payment of taxes due on it by him.

The plaintiff, in answerto the appeal, prays for ten per cent, damages for a frivolous appeal.

' The defendant has failed altogether to substantiate the averment of extension of time granted Mm. Ignoring tbe fact that be swore that the notes had been protested svlien they were not, we think that Ms testimony is exceedingly unsatisfactory. It should have been exceptionally positive and precise. It is entirely deficient. If it prove anything, it is that no time was ever granted him.

. The president and cashier of the Bank, whose testimony was produced contradictorily with the defendant, (whether the interrogatories were crossed or not is immaterial) negative the indulgence vaguely claimed to have been granted. The objection of tlie defendant to that testimony is insignificant. As he had failed to prove the alleged extension, which it was incumbent upon him to do, this evidence was superfluous.

The first ground of the injunction admits an actual indebtedness, as well as the existence of the security guaranteeing payment. It follows that the second ground, that of the extinction of the privilege and mortgage asserted by the plaintiff, is inconsistent and so cannot coexist with it. It is not such as could be, nor was it even averred in the alternative. The former is destructive of the latter.

Were it otherwise, it is devoid of merit.

A mortgagor is, in duty and in honesty, bound to pay the taxes on the property encumbered by him to pay his debt. Should he fail to do so, and the property thereby be forfeited to the State, his redemption of it, in discharging the taxes, does not extinguish the mortgage upon it. The mortgage, which was only dormant, is vivified in favor of the mortgagee. Such tortuous movement, disreputable when accomplished with evil intent, cannot be tolerated by courts of justice, as it would be permitting a debtor to thwart his creditor by an. ill practice. It is niore particularly reprehensible in the case of a vendor seeking payment of the price of sale legitimately due him.

Never has law, still less equity, sanctioned in a purchaser, the keeping to himself of both the property and the purchase money. He should give up the former, or pay the latter.

In such cases the security awakes from slumber; it does not rise from the dead. Won a morte sed a sommo resurgit. 26 A. 718; 27 A. 209; 16 A. 225; 14 A. 587; 30 A. 853; R. C. C. 3282, 3304; Pothier Hyp. ch. iii, § 2 ; Blackwell on Tax Titles, No. 399.

The defendant has clearly abused the equitable remedy of injunction.

The payment of the first note at two years, was gratuitously extended till the 18th of December, 1880, when the second one, that at three years matured. The executory proceedings were brought on March 7th, 1881. Since May 6th, following, by two groundless injunctions, the writ of seizure and sale has been chained, the defendant remaining in possession and the plaintiff kept out of its money, It is time that the writ be let loose.

The plaintiff has asked damages for a frivolous appeal; we think the same should be allowed.

It is, therefore, ordered and decreed, that the judgment appealed from be affirmed, with ten per cent, damages for a frivolous appeal.  