
    Barrow v. The Bank of Louisiana.
    Where in a petition for an injunction to stay an order of seizure and sale, plaintiff acknowledges the existence of the mortgage on the land in controversy, bnt pleads and prays, as a third possessor of the land, that the jportgagee may be condemned cuss other mortgaged property, he will not be allowed to amend his petition by dec that the land had never been mortgaged- Such an amendment would be inconsistent ¶ the previous pleadings and the party’s own allegations.
    A purchaser of property, subject to a mortgage duly recorded, and containing the pel non alienando, stands, with regard to the mortgagee, in.the position of the mortgagor, .can make no objection to a seizure and sale by .the mortgagee which the mortgagor < not make.
    'The question whether the directors of a hank, which was .authorised by its charter to lend money upon mortgage on lands only whore they are in a state of cultivation, have exceeded .their authority by making a loan upon unimproved property, is one which concernsthe State and the stockholders only. Third persons cannot set up the objection, that the loan /or which the mortgage was given, b.eingon unimproved property, was illegal.
    
      The statutes of 25 March, 1831, s. 3, anti of 29 March, 1833, s. 3, are imperative, as to the con. damnation of the plaintiff aud surety to the payment of “interest at the rate of ten per cent a year ou-the amount of the judgment,” on the dissolution of an injunction arresting the execution of a judgment. The court has no discretion as to the allowance of interest.
    Appeal from tille District Court of West Feliciana, Boyle, J.
    
      Paterson, for the plaintiff. Bowman aud Ratliff, for the appellants.
   The judgment of the court was pronounced by

Slidem,, J.

In the year 1836, the Bank of Louisiana took .a mortgage from one Overlay, upon a tract of land described as follows: “ A certain tract of land and plantation, situated in the parish aforesaid, in Barker’s settlement, on Dry bayou, containing 640 arpents, with the improvements thereon and thereto belonging; bounded on the north by vacant lands, on the north-east and east by lands belonging to William Barker’s estate, vacant lands, and the estate of Joseph Young; on the south-east and south, by vacant lands and Dry bayou ; and on the north-west by vacant lands; being the same tract of land and plantation on which Matthew Joiner lately resided.” The mortgage contained the pact de non alienando.

In 1838, Overlay sold this tract of land .to one Purl, and in this deed the vendor declared that the land was subj’ect to the above mortgage to the Bank of Louisiana. The date of the notarial act of mortgage was recited, and the vendee reserved the right of applying his instalments of price to its payment. Jn the same year Purl sold to Varney, by an act in which the purchaser waives the mortgage certificate, required by the Code to be obtained by the notary. The deed from Overlay describes the land as a tract of 640 acres., or thereabouts, fronting on Dry bayou, &c.; the deed from Purl to Varney describes it as a tract fronting on the river Mississippi, containing 640 acres, •“ being the same bought by Purl of Overlay..”

In 1841, one Slaughter, upon an execution against Varney, caused to be seized and advertised a tract of land described in the marshal’s returns as, “ Varney’s upper Barker place, adjoining the upper side of the Young place, and containing 640 acres, or thereabouts, together with all the buildings and improvements thereon.” In the marshal’s deed the land thus sold is described as a certain tract or -parcel of land containing 640 acres, or thereabouts, lying and being situated in that part of the parish of West Feliciana, known as Barker's settlement, and bounded as follows: “ On the upper or north side, by vacant lands, or lands belougiqg to Wm. D. Ray; on the east side, by vacant lands; on the lower or south-east corner, by the lands formerly owned by Robert Young, deceased, and known as the Young jrlace, fronting on Dry bayou, and lying near the Mississippi river.”

Joiner died before the mortgage was given to the bank. The tract of land on which he once lived fronted on the Mississippi, and was quite dissimilar in form and boundaries to the property in question. The accuracy and correctness, in the main, of thé boundaries set forth in the bank’s mortgage, as compared with those of the laud claimed by the plaintiff, are not questioned by the plaintift, and the evidence in the case satisfies us that Overlay mortgaged, and that the plaintiff bought, the same tract.

The principal argument advanced by the plaintiff, to sustain the injunction taken out by him to restrain the order of seizure by which th.e bank -attempted to enforce its mortgage, is founded on an alleged misdescription in the act of mortgage, to wit, that the land is described as the same tract of land, or plantation, on which Matthew Joiner lately resided-; whereas the evidence adduced at the trial shows, that Joiner never resided on this tract, but on another tract about a mile and a half distant; that the land was not in cultivation when mortgaged by Overbay ; and that one of the boundaries is erroneously stated to- be the lands of William, Barker.

What might be the effect of these variances as against a- subsequent bond fide purchaser, under other circumstances than those presented in this controversy, it is unnecessary now to consider; the plaintiff is completely estopped,.-by his own petition, from raising any such objections. The petition formally recites his chain of title, as above stated, from Overbay, Purl, and-the marshal’s sale, giving the dates of the several notarial acts and marshal’s deed, thus identifying the lands as the same mortgaged to the- defendants; declares that they have been seized at the suit of the bank ; pleads prescription of the bank’s claim ; asserts himself to be a third possessor as regards the bank; declares that, besides the mortgage of the land- so seized, the bank has also-a mortgage upon certain slaves, whieh it should first discuss, and to which discussion he, as a third possessor, is entitled. There is not only no denial that the bank had a mortgage on the land seized, but a substantial-averment that it had such-mortgage ; nor is there an approach to an averment that Barrow, when he bought, was ignorant of the bank’s mortgage..

This petition, so far as the bank’s original right of mort'goge was concerned, should have been dismissed on the party’s own showing. In fact the only possible pretext for an injunction, upon the face of the petition, was the charge of prescription, and the claim of discussion, which we will hereafter consider.

This petition Was filed, and an order of injunction obtained, in December, 1844, but not served on the bank till March, 1845, up to which time the cashier, upon whom it was served, deposes, that he had no knowledge of the order of injunction. ■ After obtaining the order, the plaintiff had a conversation with the cashier, in which he- urged him to have the negroes solid, and on frequent occasions-told him that he would pay the bank’s- debt, if the negroes were' sold. The reason assigned by Barrow was, that the negroes might be carried oft'; an apprehension whieh, it appears, was subsequently realised; the bank, however, declined to enforce a sale of the slaves.

On the 9th of December, 1845, being about one year after the original petition for the injunction was filed, after issue had' been joined' and' the cause fixed for trial, the plaintiff obtained leave, notwithstanding the opposition of the defendants, to file an amended petition, in which he avers that the land seized had never been mortgaged to the bank, and that he had not discovered this fact until the previous day. This amendment should not have been permitted. It was utterly inconsistent with the previous pleadings, and the party’s own allegations.

The party, being fully estopped by his own judicial acknowledgments from disputing the original validity of the mortgage to the bank, it#remains to consider the effect of the refusal and neglect of the bank to enforce its mortgage upon the slaves. The bank held a mortgage, with a pact de non alienando. By reason of this fact, duly recorded, Barrow stands in no better position than did the original mortgagor. Overbay could not dictate to the bank the prior enforcement of its mortgage, by the sale of the slaves; much less avail himself of the fraudulent withdrawal of that portion of the mortgage property. Barrow, claiming title through Overbuys, is precluded by this fact from raising any such objection. See Donaldson v. Maurin, 1 La. 39. Nicolet v. Moreau, 13 La. 315. Murphy v. Jundot, 2 Rob. 379. The plaintiff could have acquired a recourse upon the slaves, by paying the bank, and thus obtaining a subrbgation.

That the bank was required by its charter to loan upon mortgage of improved lands, is an objection which the plaintiff is not permitted to raise. It is a question of duty, which concerns the State and the stockholders. The plea of prescription is not tenable under the evidence.

Under the imperative terms of the aets of 1831 and 1833, we are obliged to grant the defendants in injunction, interest; but considering the indifference they have exhibited with regard to the prompt enforcement of their rights, we shall exercise the discretion-permitted- by the statute, and refuse damages.

It is therefore decreed that the judgment of the court below be reversed ; that the injunction be dissolved, and the defendants permitted to proceed in the execution of the’ order of seizure and sale; and it is further decreed that the defendants recover of the plaintiff, and of David Barrow, his surety in injunction, the sum of $1,015 13, as interest on the amount of the judgment enjoined, from the date of service of the injunction till the dissolution thereof, this day ; and that the plaintiff pay the costs in both courts.  