9 Rob. 256 | La. | 1844
The plaintiffs, Bludworth & Bullard, alleging themselves to be creditors of Hunter, for ill,666 66, with interest, on a promissory note, secured by a conventional mort
They, therefore, pray that the mortgage in favor of Bludworth may be decreed to exist upon the property in the hands of Jacobs, or the opponents, particularly on the crop of cotton, which, it is asked, may be decreed to him. To this amended answer no response was made by Lambeth & Thompson, nor by Jacobs, on whom it does not appear ever to have been served.
On the 8th November, 1842, Bludworth presented another petition, in which he recapitulates his being the holder of the note of Hunter, and its being secured by mortgage, and refers to the proceedings before stated, and to the fact of the suspension of the seizure, until the matters in controversy shall be decided. He re-asserts his claim on the crop of cotton and corn, and claims an undivided half‘of the whole of it; says that part has been gathered since the sale, and a part remains ungathered in the field, still subject to his seizure. He refers to the seizure by the Commercial Bank, at the instance of Lambeth & Thompson, pending their opposition, and while the property was under seizure at his suit, and to the-sale to Charles A. Jacobs. He says that he is apprehensive that the crop will be removed and disposed of to his prejudice, either by Lambeth & Thompson, Jacobs, or Hunter, unless restrained and enjoined, inasmuch as it is said that the crop was sold with the plantation, and is the property of Jacobs, which he denies, but avers that it is subject
The note upon which the plaintiff proceeded, arose out of a purchase made by Hunter of C. A Bullard, of one half of the plantation and slaves mortgaged to secure it. There is another note, in the hands of some unknown person, for the same amount, secured by the same mortgage. The fact of C. A. Bullard having ceded to Lambeth & Thompson, a priority in favor of their mortgage against Hunter, before he transferred the note to the plaintiffs, is not now denied.. This was done in July, 1840, and the act was recorded on the 8th of September of that year. On the 7th of May, 1840, the Commercial Bank had its judgment against Hunter and C. A. Bullard recorded; and pending the suspension of the questions between the plaintiffs and Lambeth & Thompson, the latter, who had been subrogated to the rights of the Bank, issued an execution thereon, and had the whole property mortgaged, including the crop of cotton and corn, sold on the 5th of November, 1842, for upwards of $60,000, when it was adjudicated to Lambeth, as the agent of Charles A. Jacobs. The certificate of mortgage showed a large amount of mortgages and judgments, in favor of different persons, who are not before us. The amounts coming to them, were retained by the purchaser, although one or more of them is a judicial mortgagee; and the judgment is not shown to have belonged to the purchaser, or to the opponents. The sheriff conveyed to Jacobs all the
The causes were tried together in the District Court, though it seems that they were not regularly consolidated. The judge decreed that Bludworth should recover of the defendants in injunction, one undivided half of three hundred thousand pounds of seed cotton, being the quantity gathered at the time of the sale to Jacobs, on the 1st Monday of November, 1842. He ordered the injunction to be perpetuated until the cotton should be sold, and one half of the proceeds applied towards the demand of the plaintiffs. He, also, ordered the opposition of Lambeth & Thompson to the order of seizure and sale in favor of the plaintiffs, to be dismissed as in case of non-suit. From this latter judgment the plaintiffs have appealed, saying that the judgment ought to be final, and that, as pending the proceedings in the District Court, Jacobs had become the purchaser of the property, he ought to be made a party, and he has accordingly been cited. Bludworth, also, appealed from the judgment
To the first appeal, neither Lambeth & Thompson, nor Jacobs have filed any answer. They have not joined in the appeal, nor complained of the judgment, by filing any points, nor asked the reversal of the judgment. Article 887 of the Code of Practice, says,- that the appellee, in his answer, may either pray for a simple confirmation of the judgment, with costs, or he may pray for damages, &c. The succeeding article says, that if the appellee has cause to complain of the judgment appealed from, he may, without appeal on his part, state, in his answer, the points on which he thinks he has sustained wrong, and may pray that the judgment be reversed with respect to them, and confirmed, with costs, as to the rest. The next article says, that if the appellee, on the appeal of the other party, neglect to pray that the judgment be reversed on those points which are prejudicial to him, he shall not afterwards be allowed to appeal, but that the judgment shall remain irrevocable for, or against him.
The appellants have had the cause set down for trial, and we are, therefore, only to look into the judgment for the purpose of seeing whether any injustice has been done to them in dismissing the opposition, as in case of non-suit. Upon an examination of the case as it now stands, we do not see that any serious injury can result to the plaintiffs from that decision. Pending the proceedings in the District Court, Lambeth & Thompson had an execution issued, and the property sold under it, at the suit of the Commercial Bank; and a third person, (Jacobs,) not a party in the court below, is now the possessor of it, and, we suppose, before the plaintiffs can proceed further on their order of seizure and sale, he must be made a party. In fact, we do not understand the plaintiffs as wishing to set aside the sale to Jacobs, but to come in with others, and share in the part of the price he has retained in his hands. They insist that several of the mortgages mentioned in the certificate of the recorder, have been extinguished by prescription, by payment, or in some other
The plaintiffs offered evidence in the court below, to prove that the mortgage in favor of Lambeth & Thompson against Hunter, was extinguished, in part, by the sum of $5,000, received for the insurance on the cotton gin, and by the proceeds of the crop of cotton sent to them by Hunter, in the spring of 1842. To this the counsel for Lambeth & Thompson objected, on the ground that there was no allegation in any of the pleadings of the plaintiffs of any extinguishment of the mortgage by payment or otherwise, except by applying a judgment in favor of one Monges to it. The only allegation under which it is pretended that the evidence is admissible, is that, in which the plaintiffs deny the existence of the mortgage, and then say, if it does exist, that the judgment of Monges should be deducted from it. There is no plea of payment, prescription, compensation, or remission, but simply a denial of the existence of the mortgage. The counsel contends that such evidence took them by surprise. The judge admitted the evidence, and the counsel of Lambeth & Thompson took a bill of exceptions. We think the judge erred. The mere denial of the existence of the mortgage, we think too general an allegation, to admit of evidence of payment, imputation of payment, prescription, or the like, by which it may have been discharged. We have often said, that pleas of payment, compensation, remission, and the like, must be specially alleged. The only part of the pleadings in which any thing is said about the money received for the insurance on the cotton gin, is in one of the answers of Bludworth, in which he claims that one half of the amount shall be applied to his mortgage. But there is another ground upon which, we think, the judgment is correct. Lambeth & Thompson, although they may have a prior mortgage to that under which
We think the justice of the case will be best promoted by leaving the judgment of the District Court as it is. It will enable the plaintiffs, whose order of seizure and sale will be free of any opposition, to make any parties that may be necessary to carry it into execution, or for the purpose of having justice rendered to all concerned, in the distribution of the price of the property in the hands of Jacobs; or enable them to proceed against him to annul the sale, if cause exists ; or to pursue any other course the law may authorise.
As to the judgment rendered on the injunction: The day before the cause was argued in this court, the counsel for the defendants filed an answer, praying an amendment of the judgment, so as not to give any portion of the cotton seized to the plaintiff in the injunction. This, the appellant objected to, because it was not filed three days before the day on which the cause was fixed for trial. This objection is sustained by the Code of Practice, art. 890, which requires such an answer to be filed three days before the day of argument. In the early part of the term in the Western District, answers of this description have been sometimes put in, only a day or two before the argument; but it is allowed only to facilitate business in the early part of the term, and considered as a matter of consent. When this case was argued, the court had been in session more than two weeks, and the appellees had had ample time to comply with the law.
Upon the merits, the judgment must be affirmed, unless we find that some error has been committed to the prejudice of the appellant. It seems to us there is none, fie claims one half of all the ungathered crop after the sale to Jacobs. The standing crops at the time of the sale to Jacobs, were attached to the land, and are considered a part thereof, (Civil Code, art. 456,) and were included in the price given for it. If the plaintiff in
Article 457 of the Code says, that the fruits of an immovable gathered or produced since it was under seizure, are considered as making a part thereof, and enure to the benefit of the person making the seizure. It is clear, therefore, that the seizure only operates on the gathered or severed fruits, and that when the property is sold the standing crops and fruits go with it.
Judgment affirmed.