29 La. Ann. 835 | La. | 1877
The opinion of the court was delivered by
This is an appeal from an order of seizure and sale.
Counsel for appellants, the mortgagors, has filed a brief, in which he admits, what is well settled in our jurisprudence, that the question on appeal in such cases is: Has the plaintiff submitted sufficient authentic
Counsel also call our attention to the fact that the city is a party to a. suit now pending in this court, on application for rehearing, in'which the title'to the mortgaged property is involved; and he asks that we will, in that case, grant the defendants, the appellants in this case, the relief which they claim.
The petition for executory process in this case sets forth that the city is the holder and owner of two notes, drawn by appellants to their own order, and by them indorsed, both dated twenty-ninth June, 1872, each for $4176, one at three years, and one at four years, bearing interest at eight per cent per annum from date until final payment, secured by mortgage on certain land, described ; and that the note at three years is entitled to a credit of $3200, paid on account of it on the twenty-eighth of July, 1875. The prayer is that a writ of seizure and sale issue, commanding the sheriff to seize and sell the property described, to pay and satisfy the claim on said notes in principal and interest, subject to the-aforesaid credit, with five per cent attorney’s fees, five dollars costs of copy of the act of mortgage, and costs of suit.
A certified copy of the act of sale, in which the mortgage is reserved and stipulated, passed before a notary and two witnesses, and the two notes, paraphed by the notary, and fully identified with the act, were filed with the petition. This evidence was all authentic: the act imports confession of judgment; the credit of $3200 is written across the face of the note at three years, in the form of a receipt acknowledging the payment of that amount, on the twenty-eighth of July, 1875, on account of that note ; and the prayer of the petition is clear and appropriate.
The order of the court is : “ Let a writ of seizure and sale issue in this-case as prayed for according to lawand this is the judgment appealed from.
There is no question of the imputation of payment. The note at four years did not mature until more than eleven months after the payment was made ; and the imputation was expressly made to the note at three years, which had become due about a month before the payment was made.
It was a matter of mere calculation of the simplest kind, to ascertain the amount due in principal and interest, on the note at three years, up to the twenty-eighth of July, 1875, to deduct the credit of $3200, and thus to fix the balance bearing interest from that date. • It was not the busi
We fail to discover any error or even irregularity in the proceedings in this case; and we can not, inquire in this appeal, certainly we can not go out of the record to ascertain, what may be the relations, or rights ¡and obligations of the parties dependent upon the final decision in an-other suit. The simple question is, whether the order of seizure and sale was granted on proper and sufficient evidence; and no fact or circumstance not appearing in the record can be considered in determining •that question.
The appellee prays for the affirmance of the judgment, with damages. The appellants may have supposed that they had cause to complain, and •to seek relief by appeal, although we find none in the record; and we shall not inflict damages upon them.
The judgment appealed from is affirmed, with costs.
