17 La. Ann. 121 | La. | 1865
In February, 1853, the defendant, Mrs. Edmond Fortier,, authorized by her husband, purchased of J. A Livaudais a plantation and the slaves thereon, in this parish; paying part cash, giving her own four notes, secured by mortgage on the property, for a part of the price, and' for the' balance assuming certain incumbrances then existing on said, property.
In March, 1856, during the ownership under said purchase, she issued, four other notes to her own order, amounting to $18,000; and, to secure-their payment, executed a special mortgage on said property in favor her factors, Bouligny & Ganucheau, of this city, or any holder thereof. In December, 1857, she drew four drafts, amounting to $25,000, in of Wm. Holmes & Co., on, and accepted by, said Bouligny & Ganu-cheau, and gave the latter another mortgage on said property, to protect them against the payment thereof.
The plaintiff, Gustave Bouligny, as the holder of the last of the four notes given by her in part payment of the purchase price, in 1853, caused the property to be seized and sold under executory process; and, becoming the purchaser at said sale, /retained in his hands under Art. 707 C. P. the gum of $38,540 64, to satisfy pro tanio the said two special mortgages ip favor of Bouligny & Ganucheau, In this proceeding Mrs. Edmond Fortier intervened by third opposition, making her husband, the plaintiff, and the mortgagees, Bouligny & Ganucheau, parties ; and, on appeal, this court rendered a judgment in her favor, declaring the said purchase from Livaudais, and the said two special mortgages in favor of Bouligny & Ganucheau, to be for account of the legal community existing between her and her husband; releasing her from all personal liability growing out of said acts of sale and mortgage; condemning her husband to pay her, in restitution of her paraphernal property, $46,188 38, with a legal mortgage on all his immovable property; ordering the plaintiff or his succession to pay to her, in part satisfaction of said sum, the said amount of $38,540 64, retained as aforesaid by the plaintiff, and in de
Jno. A. Merle, third opponent herein, having in due course of business become the holder of the four mortgage notes, amounting to $18,000, issued by Mrs. Fortier in March, 1866, to Bouligny & Ganucheau, ■claims payment thereof, as nest in rank, with privilege, out of the said sum of $38,640 64, held as aforesaid to satisfy said two mortgages.
To this third opposition Mrs. Fortier sets up the plea of res judioctla; denies that she ever derived any benefit from said transaction, and denies ownership of the property mortgaged, and generally all the allegations of the petition of third opposition.
Upon these pleadings and the evidence (including the pleadings and evidence in the whole record in this case), the district judge dismissed the third opposition of Merle, from which judgment he appeals.
The appellees, Mrs. Fortier and husband, make a motion to dismiss the appeal, under Art. 897 O. P.; but it is manifest that this motion cannot prevail, as the evidence is before us, and the clerk’s certificate is in due form.
On the merits, we are of opinion that the district judge decided correctly in dismissing the third opposition.
It will be.observed that the appellant is seeking to enforce his rights of mortgage upon the proceeds of the sale of mortgaged property, and not to recover judgment on negotiable paper. As to the transferee and holder of the mortgage notes, he has no greater rights under the act of mortgage than his transferrors, the original mortgagees, had; and, as to them, it is decided that this mortgage is without effect against Mrs. Fortier, and must yield to her claim or right to this very fund. The act of mortgage is not a negotiable instrument, and, unlike the notes which it secures, when assigned, is subject to all equities between the original parties. See 8 it. 435.
The record before us presents nothing to change or modify the judgment in favor of the wife. There was a community of acquests and gains existing between Mrs. Fortier and her husband when she gave the mortgage in question on the property, which is shown to.be community property, and from the sale of which this fund was derived; and her right to a judgment recognizing her mortgage as attaching to said fund is not affected by any evidence adduced by Merle, the appellant,
Judgment affirmed, with costs,
