22 La. Ann. 428 | La. | 1870
The plaintiff, claiming to be the holder and owner of two certain mortgage notes made by the defendant, sued him to recover a personal judgment, and to foreclose the mortgage.
The defendant admitted the signature, but specially denied “ that the plaintiff became tbe owner of said notes for a good and valid consideration, inasfiiuch as, to his knowledge,"those notes were, as they now are, the property of the- insolvent estate of W. T. Palfrey, and subject to the following deductions:
Second — Six hundred and fifty dollars, being one-half the price ol ten mules purchased by respondent for the benefit of the partnership which then existed between Palfrey, Callery and Segur, and paid for by Callery and Segur.
Third — Five hundred dollars, being one-half of the price of carts and oxen purchased for the aforesaid partnership and paid for by and with the funds of Callery and Sigur.
Fourth — Two thousand five hundred dollars, being one-half of the improvements put upon the land of William T. Palfrey, clearing said land and growing crop; * * * and that, long before the notes sued upon passed into plaintiff’s possession, they were subject to the deductions of three thousand six hundred and fifty-five dollars, being the amount paid by Callery and Segur for William T. Palfrey, as before stated, which payments extinguished by compensation an equal amount of the notes sued upon. The defendant amended his answer, and alleged that, ever since the maturity of said notes, he has been ready and willing to pay, and has often offered to pay, the balance he justly owes on the same, “ but that the pretended owner of said notes and the administratrix of Palfrey’s estate have refused to accede to his proposition; and, by that unlawful and arbitrary course, have made him suffer damages in an amount equal to the interest which has accrued on the notes sued upon by plaintiff and to the fees of the attorneys he was compelled to employ, which fees are fully worth $500, and, together with the interest on the notes, ought to be deducted from the amount of plaintiff’s claim.”
The court gave judgment as prayed for, except as to the slave part of the debt, which was deducted from the whole debt, and ratably apportioned in the paid and unpaid.installments.
The defendant has appealed.
As to the defense, that the plaintiff is not the owner of the notes, we think the defendant is precluded from denying it, not only by the averments of his amended answer, but by the agreement he entered into with the plaintiff, on the twenty-fifth of January, 1866, in which an extension of three years was stipulated for, and he promised to pay him ■ the interest. It is very true that no act of the defendant, the maker of the notes, can operate a divestiture of title, or give the plaintiff the ownership of the notes, which he did not otherwise possess, but by his judicial averments and by his- contract with the plaintiff, the defendant is precluded from denying it.
The compensation pleaded by the defendant can not be maintained-
If the defendant would have no cause of action against Palfrey, the payee, for a specific sum resulting from a partnership transaction, he certainly can not oppose that claim to the notes held by the plaintiff herein; besides, the claim set up is not equally liquidated and demand-able. C. C. 2205.
In reference to the slave part of the debt, we think the view taken by the judge a quo correct. See Sandidge v. Sanderson, 21 An. 757, and subsequent decisions on this subject.
In reference to the plea filed in this court that, ponding this litigation, the inscription of the mortgage has perempted by failure of plaintiff to reinscribe it within ton years, we will remark that, if the plea be permissible, of which we express no opinion, the proof of its correctness does not appear “ by the mere examination of the record,” C. P. 902; and we, therefore, can not give it effect. From the view we have taken of the case, it becomes unnecessary to examine the other defenses and the bill of exceptions taken by the defendant. The plaintiff asks for damages for frivolous appeal, and we think they should be awarded him.
It is therefore ordered that the judgment appealed from be affirmed, and that the plaintiff recover of the defendant one hundred and fifty, dollars damages and costs.
Rehearing refused.
