
    Andrew C. Finley v. H. V. Babin, Sheriff, et al.
    A judicial sale made to effect a partition among co-heirs, has the effect of extinguishing mortgages given by some of the heirs on their undivided portions, and of transferring such mortgages to the proceeds of the sale.
    APPEAL from the District Oourt of East Baton Rouge, Robertson, J.
    
      Joseph Joor, for plaintiff and appellant.
    
      F. M. Brunot, for defendants.
   Merrick, C. J.

The wife of the plaintiff, Emeline Gilmore, and the wife of the defendant Bernard, Bailey, were two out of five heirs of John and Ma/rtha Gilmore, deceased. Before any partition or sale of the effects of said succession, and before the marriage of the plaintiff, Mrs. Bailey sold her undivided interest in these successions, consisting of a sugar plantation, slaves, &c., to her sister, Fhneline Gilmore, and her brother, Jolvn A. Gilmore. They mortgaged the interest acquired and their undivided individual interests in the said successions, to secure the price.

The price not being paid at the maturity of the notes given therefor, Bernard, Bailey, in his own name, instituted his suit against the wife of the plaintiff and her brother upon the notes, in order to obtain judgment thereon, and to cause the mortgage to be recognized. ■ The plaintiff was cited as usual in actions against the wife.

During the pendency of the suit, the plantation, slaves and other effects, belonging to John and Mai'y Gilmore, were sold at probate sale. At the sale the plaintiff and John A. Gilmore bought the plantation for $9,200. The plaintiff also bought the slaves Bill, Sarah, and their children Pierce, Augustus, Henry and Julia, and negro man IAge. After this purchase, the judgment was rendered upon the notes in favor of Bernard Bailey against John A. Gilmore,mA the wife of plaintiff, in solido, recognizing the mortgage upon the undivided interest bought by them and their own undivided interest in the succession, constituting three undivided fifth parts of said successions. Bahley issued a fi. fa. upon his judgment against EmaUne Finley and J. A. Gilmore, and the Sheriff disregarding the probate sale seized among other things the plantation and the slaves bought by the plaintiff, and advertised the same for sale.

The plaintiff enjoined the sale of the slaves and his undivided interest in the plantation. His injunction having been dissolved in the lower court with damages, he has appealed.

The judgment of the lower court must be reversed. Finley was not bound for the debts of his wife, and the judgment in the case of Bailey against his wife did not bind him. His purchase of property at the probate sale in his own name must be held to be on his own account. That sale had the effect of extinguishing the mortgages given by the heirs upon the property itself, and transferring the mortgage to the proceeds. Act 1843, p. 44; O. O. 1434; Succession of Pinguay, 12 Rob. 450; 9 An. 212.

The defendants, therefore, were not authorized by the judgment against the wife, to seize the property of the husband to pay the same.

There have been no damages proven in this case, and we have no basis before us on which to estimate the same.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and that the defendants be perpetually enjoined from selling plaintiff’s undivided half of said plantation known as the Gilmore plantation, and more particularly described in the plaintiff’s petition, which said undivided half is hereby recognized as belonging to the plaintiff, and also from selling the plaintiff’s said slaves Bill, San'ah, and their children Pierce, Augustus, Servry and Julia, and the negro man Lige, described in plaintiff’s petition. And it is further ordered, that plaintiff’s demand for damages for the unlawful seizure of his property be dismissed as in the case of a nonsuit. It is further ordered, that the defendants pay the costs of both courts.  