9 La. 417 | La. | 1836
delivered the opinion of the court.
The appellee having filed an account of his administration of the estate of one Loiseau, Abat made opposition to its homologation, on the ground that he was an hypothecary creditor of the deceased, by virtue of a judgment rendered in 1827, and duly recorded with the register of mortgages, which had been omitted in the account; and he prays an amendment of the account, and that he be recognized as a creditor for the amount of said judgment.
The curator, in his answer, admitted that such a judgment had been recovered and recorded, but he avers payment in the lifetime of his intestate.
The opposition was overruled and dismissed, and Abat appealed.
The principle contended for by the counsel for the appellant is admitted: that a judgment is the highest evidence of a debt, and that the original title merges in the judgment; but proof of the discharge of such judgment may be made by-presumptions as well as by positive evidence. In this case, it appears that the judgment was against Loiseau as endorser of a promissory note ; that judgment was also recovered against the drawer. Some time afterwards, the note was withdrawn from the record by the plaintiff’s counsel, who, being requested to erase the mortgage or enter satisfaction, answered, that the money had not passed through his hands, and he could not do it. It further appears, that on the 17th July, 1827, a fieri facias issued against the drawer; was returned by order of plaintiff's attorney, on the 31st of the same month, and on the 2d August the note was withdrawn,
This evidence satisfies us as it did the court of the first instance, that the debt had been paid, and the judgment extinguished.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.
