Barker ex rel. Atchafalaya Bank v. Banks

| La. | Jun 15, 1840

Martin, J.,

delivered the opinion of the court.

The defendants are appellants from an order of seizure and sale, granted to the plaintiff, Barker, for the use of the Atchafalaya Bank, against certain property purchased by them from Barker, the vendor.

The act of sale shows that the defendants, John G. Banks and Robert C. Cammack,. purchased a corner lot of ground in New-Orleans, for the sum of ten thousand dollars, payable in six instalments, for which they gave their promissory notes; each of them being alternately maker and endorser, together with a mortgage on the property. The act of sale éxpresses, that these notes are drawn payable to the order of the payee, without stating that he endorsed the .same. The vendor (Barker) acknowledges to have received these notes after they had been marked ne varietur by the notary.

The defendants rely on the following assignment of errors.

1. There was no authentic evidence adduced, of the endorsement of the payees of the notes sued on, or of the costs of protest to authorize the order of seizure and sale to issue.

2. There is no authentic, evidence of the demand of payment of said notes, nor of liability for interest.

3, That there is no authentic evidence of the plaintiff’s acceptance of the mortgage; and generally that said order issued without sufficient authentic evidence, and is contrary to law '*

f , I. This case is to be distinguished from that of Dakin et al. vs.Ganahl & Co.; 13 Louisiana Reports, 512; which is relied on ’ anc^ ’s die case °f transferees of a note and mortgage, The present is, that of the vendor against his vendees, all of . r . ’ . . ° whom are parties to the authentic act, on which the order of seizure and sale issued. This document establishes that the vendees were sureties for each other, and that the security was taken in the form of endorsed notes. Admitting that the sureties did not endorse the notes, the principals are not the less liable to their vendor; for the act of sale proves that they delivered the notes to the latter as evidence of the price of the sale.

Evidence of demand and the rightto claim interest, results from the protest and act of sale, when the price is for immoveable property. The signature of a party to an act of sale is proof that he accepted the sale.

II. Evidence of demand, and of the plaintiff’s right to demand interest on the notes, results from the protest, and also from the act of sale; it being for- the price of immoveable properly.

III. The signature of the plaintiff to the act of sale, is evidence that he accepted it, with the mortgage and all the stipulations contained therein.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Commercial Court be affirmed, with costs.