10 Rob. 180 | La. | 1845
The facts of this case are these: On the 13th of January, 1840, Andrews and wife sold, by notarial act, to J. B,
It appears that on the day of the sale from Taylor to Courtney, three promissory notes were executed by the latter, in solido, with two other persons, for $2000 each, payable to Andrews, or bearer, on the first of January, 1841, ’42, and’43, corresponding exactly with the periods of maturity of the three notes mentioned in the first sale, and subsequently cancelled. These last notes, though not mentioned, norin any manner alluded to in the act ofsale from Taylor to Courtney, as replacing the three first notes, contain a certificate of the Parish Judge, in which he declares that, “this note is given to secure the purchase money of three lots in Clinton, this day transferred by J. B. Taylor and wife to Ezra Courtney and no date being given to this certificate, the words “ this day” must necessarily refer to the date of the notes.
Sometime after the maturity of the second note, Andrews applied by petition to the Judge of the d hird District, for the purpose of obtaining an order of seizure and sale ©f the three lots by him sold to Tailor and Courtney, to satisfy the two first notes executed by E. Courtney and others, alleging therein that
His petition represents that Andrews had no right to obtain the order of seizure and sale, which, he insists, is unauthorized by law. He admits the purchase made by himself and Taylor, on the 13th of January, 1840, for which they gave three notes, &c., but avers that said notes were subsequently novated and paid by the other three notes given on the 20th of March ; that these notes were given to Andrews, and the three previous ones were cancelled. He further alleges that no mortgage was executed on the property to secure the payment of the notes of the 20th of March, and that it is not even pretended in Andrews’ petition for an order of seizure and sale, nor alleged that any mortgage, or act importing a confession of judgment on the same exists. He prays for a writ of injunction, and claims $500 damages against Andrews, &c.
Andrews answered by averring that there was no sufficient ground for the issuing of the injunction. He denies that there has been any novation as set forth in the petition; and prays that the injunction maybe dissolved, with interest and damages,&c.
Judgment was rendered below in favor of the defendants, dissolving the injunction, and condemning the plaintiff and his security on the bond, to pay, in solido, to the defendant Andrews five per centum on the amount enjoined as damages, and the further sum of $100 as special damages; and from this judgment, after a vain application for a new trial, the plaintiff, Courtney, has appéaled.
It has been asserted in the argument of this cause, and assented to by the appellant’s counsel in open court, that said appellant
The only question then presented to our consideration is, whether the injunction sued out was wrongfully and improperly obtained 1
We are of opinion that it was properly granted, and that it should have been maintained below. Under the provisions of our Code of Practice, it is well known that executory process can only be resorted to in two cases, one of which is, when the creditor’s right arises from an act importing a confession of judgment, which contains a privilege or mortgage in his favor, (Code of Practice, art. 732) ; and that an act cannot be considered as importing a confession of judgment, unless, being passed before a notary public and two witnesses, the debtor has declared or acknowledged therein the debt for which the privilege or mortgage is given. Ibid. art. 733. Thus, it seems to be absolutely required that the declared indebtedness of the mortgagor, or his acknowledgment of the debt, should appear on the face of the act itself, and that nothing short of such written declaration, or acknowledgment in the act of mortgage, should authorize the issuing of executory process. In this case, however, the order of seizure and sale complained of, was applied for upon an act which does not contain, on the part of the plaintiff, Courtney, any declaration of his being indebted to Andrews in the amount sued for by the latter. The notes annexed to Andrews’ petition are not even mentioned in the act; and although those notes contain a certificate of the Parish Judge, showing that they were given to secure the purchase money of the property transferred by Taylor and wife to Courtney, such certificate cannot, in our opinion, be considered as bearing on its face that authenticity which the law requires. Certain it is that Courtney, though the last vendee of the property, which
With regard to the parol evidence admitted below to establish facts which are not shown by the written acts annexed to Andrews’ petition for an order of seizure and sale, and which evidence, having been objected to, became the subject of two bills of exception found in the record, we think it was improperly received. The law does not contemplate that parol evidence should be admitted to supply, strengthen, or add to the stipulations contained in an act of mortgage on which an order of seizure or sale is sought to be obtained. The evidence which the law requires must appear on the face of the instrament itself, and none can be received aliunde. As we have already said, nothing short of the written declaration, or acknowledgment of the debtor in the deed of mortgage, should authorize the issuing of executory process.
With this view of the case, it is unnecessary to examine the other questions, and particularly that of novation, which have
It is, therefore, ordered and decreed, that the judgment of the District Court, with regard to the appellant Holmes, surety on the injunction bond, be avoided and reversed; and that ours be in favor of said appellant, with the costs in both courts.
And were secured by mortgage on the property.