Bonin v. Durand

| La. | Aug 15, 1847

The judgment of the court was pronounced by

Slidell, J.

Sev.eral alleged informalities in the judicial proceedings and sale under which the defendant claims title, have been specially set forth in the petition, and elaborately discussed at bar. We shall give our attention to one, which appears to us a fatal defect. A decree of seizure and sale was rendered, in Í83S, against certain mortgaged property, including the slaves now in controversy. A writ of seizure and sale issued, which was returned by order of the seizing creditor. In 1844, without any new order of court, the clerk issued a second writ of seizure and sale, upon the authority of which the judicial sale was effected. This writ was signed by the clerk; but, as is admitted by the parties, did not bear the seal of the court. We consider the seal of the court an essential requisite to the validity of an execution ; and as it did not exist in the present case, the sheriff must be considered as having made the sale without any lawful authorisation. It is urged by the learned counsel forthe defendant, that no writ was necessary ; that it was sufficient that a decree of seizure and sale had been made by the court. We cannot recognise any distinction, in this respect, between a decree of seizure and sale and an ordinary final decree. Both are judgments, and in both a writ is necessary as the sheriff’s warrant for their execution. That process is to be issued by the clerk in the proceeding via execuliva, is obvious from the provisions of the Code of Practice, and upon general principles ; and the universal practice since the promulgation of the Code, as we believe, has been to issue a formal writ under the seal of the court, as in ordinary cases.

It is not indispensable fox the decision of the present suit that we should express an opinion upon the other points made in the case. But as they have been fully ai’gued, and as it is evident that there will be further litigation between these parties, we have considered it proper to notice some of the points presented by the plaintiffs.

We consider the mortgage executed by the plaintiffs’ ancestor to the bank, as covering not merely the stock, but also the loan made to Madame Martinez, pursuant to the credit to which she was entitled as a stockholder. A consideration of the true intent and spirit of the charter of the “ Consolidated' Association,” which charter is expressly referred to in the act of mortgage, might perhaps suffice for the solution of the question. But Besides this, the language' of the contracting parties in the act of mortgage very clearly indicates their intention, that the loan should be- secured- by mortgage-. It recites that the-mortgagor desires to furnish a mortgage in--conformity to th8 provisions of the-charter, specially referring to the 5th and’ 6th sections of the statute of 1827,- and the 6th section- of the amendatory statute of 1828, in whioh sections the-security of the capital By mortgage is contemplated, the right of the stockholder to a Iban declared, and hypothecary obligations of whatever nature subscribed by individuals in favor of the bank are’ constituted a special guarantee and> security for the reimbursement of the capital-of $2,500,009. The mortgagor,after these recitations, proceeds to mortgage’ the slaves in question, describing; them, and adding the usual covenants de non alienando, See. The mortgagor then declaresher intention to avaihherself of the'eredit allowed-her as a stockholder,-and-acknowledges the-receipt of the loan-.. The act then’ recites that she has furnished her bond for the amount of the loan, “ laquelle obligation a’ eté signé etparaphé ne varietur par le jugé. ex officio notaire, soussigné, confórmément- á la lob et emeonformité de l’acte hypotÜécaire susment-ionné.”

It was arguedThatthe'mortgage had been lost by the- failure to re-inscribe it’ within ten years. The plaintiffs are the heirs of the mortgagor, and represent the person of their ancestor. The failure to re-inscribe would, in ordinary cases, be fatal as to third persons, but leaves the mortgage unimpaired as between the mortgagor and mortgagee. The doubts which'have existed as to the proper interpretation on this point of article 3333 of our Civil Code; have arisen from the inaccurate translation of the french- text. It is the “ effect'’’ of. the inscription which ceases, not of the mortgage. The subject was very carefully considered, after full’argument, in the recent cases of Shepherd v. The Orleans Cotton Press, ante p. 100, and McElrath v. Dupuy, ante p. 520. See also Civil Code, arts. 3314, 3315, 3316.

Upon the plea of prescription- of the debt set’ up by the plaintiffs, the court Below was of opinion that the debt was not prescribed, and gave judgment accordingly. In this the plaintiffs say there is error; and, in their answer to the appeal; they pray that the- judgment of the’eourt, in this respect, be reversed. After a carefuleonsideration of the evidence our minds are not entirely satisfied upon the question of- prescription. While we, however, reverse the opinion of the district judge upon this point, we are not prepared to adjudge the question in the plaintiffs’ favor. Much light may be thrown upon the facts of the ease in the- future contest which will probably occur; the examination of the point is not indispensable to- the decision- of the present suit, and we shall leave it entirely open.

It’is therefore decreed that so’much only of the judgment of the court below as decrees “ that prescription-as to the debt has not attached, but that the plea of prescription tb the mortgage-is sustained,” be reversed. And it is further decreed that, in all other respects, the said judgment be affirmed, with costs; leaving the question of. prescription as to-the debt open. And it is further decreed that the plea of prescription; or peremption, of the mortgage executed in- favor of the said Consolidated Association, be dismissed.