57 So. 157 | La. | 1911
Statement of the Case.
Plaintiff brought suit on a note for $3,300, purporting to have been made by a person whose name really appears to be Salvatore Cantioto, to his own order and by him indorsed, dated July 15, 1907, payable in one year, with interest, and secured by mortgage on certain real property in this city. He alleged that he acquired the note from Rocco Cusimano and his wife, Theresa Cusimano, who acquired it from Cantioto, in part payment of the purchase price of said property; that he gave said Rocco and Theresa Cusimano, in exchange for said note, six notes, each for $500, made and indorsed by them, dated April 19, 1906, payable in from one to six years, and secured by mortgage and vendor’s lien on the property mentioned, which notes he acquired as the vendor of said property. He further alleged that he had been paid $325, which was duly credited on the note sued on, and he prayed for citation and for judgment against the Cusimanos and Cantioto for the amount of said note, with interest, attorney’s fees, and costs, less $325, and with recognition of the mortgage by which said note purports to be secured.
The Cusimanos answered, in effect, that they purchased the property referred to in the petition from the plaintiff on April 19, 1906, and gave in part payment of the purchase price six notes of $500 each made by Theresa Cusimano, with Rocco Cusimano, her husband, to authorize her; that, at plaintiff’s request, they on July 15, 1907, repaired to the office of Robert J. Maloney, notary, where they were made to affix their marks to an act which, they are now informed, purports to be an act of sale of said property to Cantioto, and to a note for $3,-300; that they are illiterate and are unable to speak, read, or write English; that said purported sale was not a sale; that they never delivered the property to Cantioto, never received the $2,500, which, the act declares, was the cash portion of the price, never received the six notes of $500 each, which plaintiff alleged he surrendered; and that they found that their property stood in the name of Cantioto, and that there were outstanding against it the seven notes mentioned. They further alleged that all this was brought about at the instance of plaintiff, and that they did not understand it; that Cantioto was in Italy, and was here represented by a curator ad hoc; that the property in question was the separate property of Theresa Cusimano; that Maloney acted as the agent and adviser of plaintiff, and that they paid him in that capacity at different times sums aggregating $410. They prayed that the pretended sale to Cantioto be decreed a simulation; that the note and mortgage given and executed in connection therewith be decreed of no effect; and that plaintiff be decreed not to be the holder for value of the note sued on. The curator ad hoc, appearing on behalf of Cantioto, filed a general denial.
Louis Spiro intervened, alleging that he was the owner of the genuine Cantioto note for $3,300, that it was renewed, by Maloney, up to July 15, 1909, and interest paid, but that Maloney was without authority to renew it.
William Schroeder intervened, alleging that he was the owner of the genuine Cantioto note, and praying to be so recognized. Plaintiff answered, alleging that the signatures on the notes held by the interveners were forged. There was a trial, in the course of which, the expert appointed by the
From the judgment so rendered (which was signed Jany. 3, 1910), the plaintiff and Schroeder appealed on January 7, 1910; and an appeal was granted to the “defendant” on March 9,. and lodged in this court on March 11, 1910. Thereafter, on March 31st, an agreement signed by the different counsel, to the effect that the Cusimanos and Cantioto should be considered parties to the appeal, was filed in the record; and shortly afterwards, on a motion to dismiss the appeal of the Cusimanos, it was held that the agreement was binding on the parties. Christina v. Cusimano et al., 125 La. 1063, 52 South. 157. Considering the merits, the court concluded that further inquiry should be made into any and all facts which might throw light on the forgeries; that the act of sale to Cantioto should be corroborated by other evidence, and that something more should be ascertained concerning Cantioto, and the case was therefore remanded, to be tried in accordance with the view thus expressed. Christina v. Cusimano, 125 La. 1062, 1063, 52 South. 157.
When the matter again reached the district court, additional pleadings, to which we shall refer hereafter, were filed on behalf of plaintiff and defendants. Jules S. Dreyfous intervened, alleging that pending the appeals from the original judgment the property involved in the litigation had been sold by the sheriff under a writ of fi. fa. issued at the instance of Spiro, and had been purchased by him, and praying that the title so acquired be sustained, and there were some other pleadings, after which and after hearing evidence and argument there was judgment decreeing the nullity of the alleged sale to Cantioto, rejecting the demands of Spiro, Schroeder, and'Dreyfous, condemning the Cusimanos on the six notes sued on (in the alternative) by plaintiff, ordering that the property affected be sold, and that plaintiff be paid, by preference, from the proceeds; that each intervener pay the costs of his intervention; and that the balance of the costs be paid by the Cusimanos. From the judgment so rendered, Spiro and Dreyfous have appealed.
We find the facts of the case to be as follows:
The Cusimanos (man and wife), who can neither speak nor understand English, nor read nor write in any language, had acquired two lots of ground, or an interest in two lots, by paying the price in small monthly installments, and had built, or had begun to build, a house ,on them, the purchase having been made in the name of the wife, though there is no suggestion that it was with paraphernal funds; but they concluded that they needed more money for their building operations, and an arrangement appears to have been made whereby the title was placed in the name of Christina, who on April 19, 1906, executed an instrument purporting to be a sale of the property to them for $4,000, of which, according to the act, $1,000 was paid in cash, and the balance was represented by their six notes of $500 each. The $1,000, as we infer, was the amount that they had already paid, and the six notes were given for $3,000 in cash, which was then and there loaned to them by Christina. The first of the six notes fell due in April, 1907, and, as it was not paid, Christina instructed or authorized his wife to see about it, and she saw Mnloney, the
' “The purchaser hereby binds himself to keep the buildings on above described property constantly insured against the risk of loss by fire and to transfer such insurance to the present owner or any other holder or holders of above described note, up to the full amount of such note”—
and though a policy of insurance was delivered to Mrs. Christina, with the note that was given to her, Mr. Spiro testifies that he received no transfer of insurance, and at that time made no inquiry upon the subject. Further still, the act with which the notes in question are identified (for there is no question as to the genuineness of the paraph on either of them) makes no provision whatever for the mortgage resting on the property to secure the $3,000 represented by the six notes held by plaintiff. To the contrary, the act contains the recital:
“By reference to the certificates of the register of conveyances and recorder of mortgages in and for the parish of Orieans, annexed hereto, and from the United States District and Circuit Courts of this district, it does not appear that said property has been heretofore alienated by the said vendor herein or that it is subject to any incumbrances whatever.”
The fact is that the property was then incumbered by the mortgage in favor of the plaintiff for $3,000, with interest, etc., imposed by the notarial act of April 19, 1906, and that no attempt was made to release that mortgage until July 25, 1907, when an act of release, executed, by Paul W. Maloney, notary (brother of Robert J. Maloney), was filed in the recorder’s office. That act recites that J. Vic De Clerc appeared before the subscribing notary as the last holder of the five notes that plaintiff had surrendered, and declared that they had been paid' in full; that he exhibited them to the notary, duly canceled and erased, and authorized the release of the mortgage by which they were secured. On the other hand, Le Clerc testifies that while he signed the act of release he never was the owner of the notes; that he got them from Robert J. Maloney; and (being shown the notes) that they were never paid while in his possession and were never, at any time, canceled or marked paid, and he is corroborated by the notes themselves which are in the record uneanceled.
On January 7, 1910, which was within 10 days from the signing of the judgment rendered on the first trial of the case, Schroeder and Christina each obtained an order granting him a suspensive and devolutive appeal on furnishing a bond for $500, and the bonds were duly furnished and the appeals duly lodged here, under the number 18,098. On January 28th Spiro caused a writ of fi. fa. to be issued under the judgment thus appealed from, and the sheriff by virtue of said writ seized the property here in question, and advertised it for sale. On March 9th a devolutive appeal was granted to “defendant,” on motion of counsel for “defendants,” for which a bond was furnished by Mrs. Cusimano, and the appeal was duly brought up. On March 10th the sheriff adjudicated the property which he had seized and advertised to Jules S. Dreyfous for $4,950, of which amount $495 was paid on account. On March 31st a motion was filed in this court by counsel representing the Cusimanos and Cantioto, to which was attached a written instrument, signed by the counsel for all the other litigants, embodying an agreement to the effect that the Cusimanos and Cantioto “be and they are hereby made parties to the appeal.” Thereafter a motion was filed on behalf of Spiro to dismiss the appeal which had been granted on motion of counsel for “defendants,” and on April 11th the motion was denied;
“This agreement, though filed as before stated, was entered into, as shown by the date on the face of the paper, on March 18, 1910. In the presence of such an agreement, we will not stop to consider the objections urged to the appeal. We must give effect to this agreement. It evidences a consent that parties be made parties to the appeal among counsel that is conclusive and binding.”
In the record which was .last brought up we find some testimony given by Mr. Ricker, the chief deputy of the civil sheriff, upon the subject of the course that has been pursued by the appellant, Mr. Dreyfous, since the adjudication to him of the property. Mr. Ricker testifies that the counsel for Christina and for Schroeder objected to his proceeding to sell the property; that the adjudicatee paid §495 'on the day of the sale, and has paid nothing since; and that he has not complied with the adjudication. Being asked, “Has he ever offered to comply with the adjudication?” the witness answered:
“Well, I don’t know. The title has been referred to Mr. Danziger, and he has not reported on it. They have not complied with the adjudication.”
He is then cross-examined by Mr. Danziger (counsel for Dreyfous) as follows:
“Q. Has any demand been made by you for us to comply, as it has been termed; in other words, to pay the balance of the purchase price? A. I asked you, several times, whether you intended to comply. That was before the Supreme Court passed on the question. You said you were going to wait to see how this came out. Q. Have any steps been taken by your officer to enforce the compliance by demanding the balance of the purchase price? A. No. sir. Q-. As a matter of fact, the sheriff’s office doesn’t require the purchaser to comply — don’t you wait upon the action of the plaintiffs? A. Once in a while I call and see the lawyer, and ask him how he is getting along with it. Q. That is what you did in this case? A. Yes, sir; never made any personal demand on Mr. Danziger. The question In dispute in this appeal was pending then, and Mr. Danziger said he preferred to wait. By the Court: Eor the Supreme Court to decide the case? A. Yes, sir. By Mr. Patorno: Since the Supreme Court decided the ease has there been no (any) attempt on the part of Mr. Danziger to comply for his client? A. He has not complied. By Mr. Danziger: Has any one of the attorneys for any party to this suit asked you to take proceedings of any kind to force the adjudicatee, or to have the adjudicatee, to pay the balance of the purchase price? A. No, sir.”
Opinion.
Cantioto, through a curator ad hoc, filed a general denial; but neither he nor the other defendants appear to have answered the interventions at all, nor do we find that on the original trial any judgment by default was rendered against them. The answers to the interventions filed by them when the case was remanded were not amended answers therefore, but were original answers, in which the Cusimanos allege that the pretended sale to Cantioto is null and void for the reasons (1) that the act was not signed by Rocco Cusimano, and was signed by no one in the presence of two witnesses; (2) that Theresa Cusimano never heard it read, in its present form, and was unable to read it herself: (3) that it was a fraud, because no sale was intended; (4) that material alterations have been made in the act, without their knowledge or consent; (5) that the notes held by the interveners are not secured by mortgage under said act; (6) that interveners paid nothing to appearers for their notes and acquired them, if at all, from one not the owner; (7) that interveners never acquired said notes at all,, and in which Cantioto denies that he bought the property in question or paid anything for it, alleges that it belongs to the Cusimanos, and further alleges that he signed one note for $3,300, for which he received no consideration, and the holder of which he does not know.
Judgment affirmed.