On Rehearing.
SOMMERVILLE, J.A rehearing was granted on the petition of defendants as to the attorney’s fees, which were allowed in the opinion of the court as damages.
[7] In determining whether counsel fees should be allowed or not, and, if allowed, the amount, the court found that it was necessary for plaintiff to employ counsel to protect his property from seizure by judicial process in a suit by defendants in which he (plaintiff) was a stranger. His real estate had been seized to pay the debt of a third person, the judgment debtor of defendants. Such seizure by defendants was a quasi offense, for which they are responsible in damages to the owner of the property seized. O. C. 2315.
In the case of Deliole v. Morgan, 2 Mart. (N. S.) 24, it was held a trespass on the part of the sheriff to have seized and sold the property of plaintiff on an execution against another.
And in Edwards v. Turner, 6 Rob. 382, it is held:
“If the property of A. he attached under proceedings authorizing the seizure of that of B., it is a case of trespass.”
In such cases actual damages are sustained, and the owner of the seized property is entitled to damages. And, where a writ of injunction is rendered necessary to protect the property from seizure, the costs of such proceedings and the fee of counsel for plaintiff in the writ are parts of the actual damages sustained by plaintiff in the writ.
In the case of Townsend v. Fontenot, Sheriff, 42 La. Ann. 890, 8 South. 616, where plaintiff, the owner of the property, injoined the sale of the property seized, and asked for attorney’s fees as damages, the court say:
“The demand for attorney fees cannot be allowed. Such fees are allowed as damages when the injunction, is dissolved; never when it is maintained; particularly in the absence of malice and probable cause. Dyke v. Dyer, 14 La. Ann. 701; [Neveu v. Voorhies] 14 La. Ann. 738 ; [Smith v. Bradford] 17 La. 263; [Hill v. Noe] 4 La. Ann. 304; [Flynn v. Rhodes] 12 La. Ann. 239; [Bank v. Toledano] 20 La. Ann. 571; [Chappuis v. Preston] 28 La. Ann. 729.”
In the earlier case of White v. Givens, 29 La. Ann. 571, where the judgment debtor caused a writ of injunction to issue to preserve his homestead, the court allowed attorney’s fees in sustaining the injunction. The court say:
“The plaintiff seeks in this suit, not only to prevent the sale of his homestead, but damages for the wrongful seizure. He treats the seizure as unlawful, a trespass, a violation of the right of exemption secured to him by law. He alleges as elements of damage the fees paid his attorney, the loss of his crop, the annoyance to his family, and his loss of time occasioned by the seizure. It is proper in estimating the damages occasioned by an unlawful invasion of the rights of a plaintiff to prove the loss, including the expense which he has incurred in preventing further wrong; and the reasonable fees of an attorney may be allowed as well as any other expense occasioned to the plaintiff by the unlawful act of the defendant.”
The above decision is in line with Cooper v. Cappel, 29 La. Ann. 213, where the wife of the judgment debtor sued for damages because of the seizure of her property for the *243debt of her husband. . Attorney’s fees were allowed in that case.
In the case of Shorten v. Booth, 32 La. Ann. 397, where plaintiff enjoined the sale of property which he had acquired at the bankrupt sale of his own property, and where defendant had caused that property to be seized under a writ of fieri facias in execution of an alleged judicial mortgage, attorney’s fees were allowed in maintaining the writ of injunction.
There has been diversity of opinion as to whether attorney’s fees would be allowed as damages on the maintenance of an injunction to prevent the seizure and sale of one’s property in a judicial proceeding against a third person. Such damages have been allowed in Willis v. Scott, 33 La. Ann. 1026, and Ludeling v. Sheriff et al., 50 La. Ann., 118, 23 South. 94.
The general rule is that a litigant must pay his attorney. Attorney’s fees are not parts of taxed costs in a suit. And such fees have not been construed as damages, except in those cases where a litigant has abused legal process and the other is compelled to go into court to have the illegal process set aside. In cases where a tort, or quasi offense has been committed, and the property of a third person has been seized for the debt of another, and the owner of the property invokes the process of the court to maintain his possession and ownership, the latter should be allowed reasonable attorney’s fees, as damages.
In the case of Iberia Cypress Co. v. Thorgeson, 116 La. 218, 40 South. 682, attorney’s fees were denied as damages to the plaintiff in injunction, who was the owner of the property which was being trespassed upon; but cases allowing such damages where property had been unlawfully seized under writs of fieri facias were approved.
Attorney’s fees have been allowed as damages in suits for damages in. the following cases: Chapuis v. Waterman, 34 La. Ann. 58; Gilkerson-Sloss Co. v. Yale & Bowling, 47 La. Ann. 690, 17 South. 244; Gilkerson-Sloss Co. v. Baldwin, 47 La. Ann. 696, 17 South. 246; Am. Hoist & Derrick Co. v. Frey, 127 La. 183, 53 South. 486.
It is clear that, where one has abused legal process and causes the property of a third person to be seized for the debts of another, and the third person is compelled to go into court to maintain his title to the property seized and to have the illegal process set aside, a tort or quasi offense has been committed by the seizing creditor against the third person, for which he is responsible in damages, including attorney’s fees.
That is the basis for the allowance of attorney’s fees as an element of damages for the dissolution of the conservatory writs. The use of these writs affords an extraordinary, but harsh, remedy, and the law looks upon their misuse or abuse as a trespass for which the offender must render account. Attorney’s fees are allowed only for services rendered in having the writs dissolved and the property seized thereunder released. The allowance of attorney’s fees for the dissolution of the conservatory writs has passed beyond the pale of controversy.
The same reason exists for the allowance of attorney’s fees in favor of a third person who is obliged to resort to the writ of injunction to have title to property maintained and his property released from seizure as that of another as exists in favor of the defendant in one of the conservatory writs. In either case it is the abuse of the harsh, but extraordinary, powers of the court that entails the penalty. The plaintiff in one of the conservatory writs has his choice of taking the ordinary course and obtaining judgment before putting the mandate of the court into motion. If he chooses to put the mandate of the court into motion before judgment, he does so at his peril. So does the *245judgment creditor who wishes to test the title to property claimed by a third person by seizing it and defending an injunction suit instead of proceeding by an ordinary suit. In the one case, as in the other, the harsh remedy of seizing in advance of the judgment justifying the seizure entails the penalty of having to pay the other man’s lawyer when the seizure turns out to have been wrongfully made.
Where property belonging to and in the possession of a third person is illegally seised as the property of the judgment debtor, and the owner goes into court, enjoins the seizure, and has it set aside, and maintains his title, the plaintiff in injunction is entitled to counsel’s fees as damages.
The injunction in this case was sued out by plaintiff to rescue a piece of property from seizure and sale, valued at $175,000, for the debts of a third person; and the fee of $1,500 allowed by the district court is based on the value of the thing seized. It is reasonable and will not be disturbed.
The record discloses not only the value of the property of plaintiff which was seized, but also the attack made by defendants against the title of plaintiff, and the valuable services rendered by counsel for plaintiff. These are elements which will be considered in fixing fees of counsel in such cases.'
There may be cases with extenuating circumstances which would relieve a seizing creditor from actual damages when the property of a third person is illegally seized. But this case is not such.
It is true that defendant Whitmer had illegal possession of the property at one time, and that he paid taxes thereon to preserve the property, for which amount of taxes he had a privilege. But he was dispossessed, and he retained only a privilege for the amount of the taxes; and, as this privilege was not registered at the time that plaintiff acquired the property, he bought without notice of its existence.
A mortgage certificate may have shown certain taxes to have been due at the time of the purchase, but the record showed at that time that these taxes had been paid. They were not therefore unpaid, and there was nothing suspicious in the waiving of the mortgage certificate by plaintiff.
Defendants say:
That “the plaintiff in execution was not a willful trespasser, but evidently acted in good faith,” and that this is not such a case as calls for damages.
They say further:
“Respondent avers that the plaintiff herein is not a purchaser in good faith.”
And again:
“We are not concerned with his [Soniat’s] outside understandings, if any he had. What should govern the infliction of damages is the fact that at the time of the levy, and at the time of the institution of the injunction suit, the circumstances surrounding Soniat’s title were such as to justify any honest man in believing that the transaction was not bona fide, and was, on the contrary, a flank movement to defeat the operation of a judgment which in specific words granted to Whitmer the right to retain the property, and which recognized by its language that he was in possession of the property, with a privileged right of detention superior to all oth-
The record fails to disclose that the purchase by plaintiff was not bona fide, or that it was a flank movement to defeat defendants in any of their rights. The judgment referred to found that defendants had been in unlawful possession of the property, and it deprived them of that possession. It recognized that they had a privilege on the property for the amount paid by them to preserve it while it was in their possession; but it did not give them any right to detain the property until the privilege was paid by Dunlap.
The seizure by defendants of plaintiff’s property under a judgment against Dunlap was a trespass. The circumstances surrounding Soniat’s title do not present such an exceptional case as to take the illegal seizure of it from under the rule that:
*247“Every act whatever of man that causes damages to another obliges him by whose fault it happens to repair it.” C. C. 2315.
It is therefore ordered, adjudged, and decreed that the judgment of the district court fixing the attorney’s fee at $1,500 is affirmed, at the cost of the appellant.
See dissenting opinion of O’NIELL, J., 74 South. 920.