23 La. Ann. 244 | La. | 1871
This is a suit against the maker on a note secured by a mortgage. The defense is payment and the plea that the mortgage had prescribed by non-reinseription within ten years.
As the suit is against the defendant who is in possession of the mortgaged premises, we do not perceive what difference it would make to defendant if the mortgage bad perempted. It can not be prescribed so long as tbe primary obligation exists. But tbe mortgage had not perempted, as ten years bad not run since its registry.
On tbe trial, tbe defendant offered a j>rivate agreement between himself and bis father, tbe husband of the plaintiff, for tbe purpose of proving tbe agency of tbe plaintiff’s husband and authority to receive payment on tbe note, which was objected to and excluded on tbe ground that it was res inter alios aeta and totally irrelevant. Tbe ruling was correct.
Defendant offered tbe testimony of J. U. Payne, taken by commission, to prove that tbe firm of Payne, Huntington & Co. bad paid Roger B. Marshall one thousand dollars, as the agent of his wife, by sanction of defendant, which was objected to as irrelevant. Tbe objection was sustained, and tbe testimony was rejected. We think tbe judge a qtio was right in saying tbe evidence was irrelevant, for, admitting tbe firm aforesaid did pay tbe sum stated to t))e husband, supposing him to be tbe agent of bis wife and authorized to receive tbe money, that does not prove the fact in question — the authority of tbe husband to receive the money for his wife. She was separated in property from her husband and had the administration of her own affairs, and the money paid to her husband is not shown to have inured to her benefit; in fact, the contrary is sworn to by the wife, and the note was not in the possession of the husband. Pinckney v. Mulhollon, 6 R. 40; 10 M. 310; 4 An. 526, Pew v. Labythe et al.
It is therefore ordered that the judgment of the court a qua be be affirmed, with costs of appeal.