2 Mart. (N.S.) 336 | La. | 1824
delivered the opinion of the court. The petitioner in this case obtained a mortgage from one Joseph Aydelott, now deceased, on certain lots in the town of Madisonville, in order to secure the payment of two promissory notes of $1500 each; and seeks by this action to enforce that mortgage on the property affected by it, which is now in the hands of the defendant.
The defendant sets up title to the premises in virtue of a conveyance from Joseph H.
The evidence introduced on the trial, supports the allegations of the parties, and we have therefore presented for decision, a question of vast importance; not only as affecting rights to property, which has heretofore been acquired, under sales made by order of the probate courts throughout the state, but also as recognizing a rule which in future will have a frequent and important application, in the settlement of deceased persons estates.
We pronounced an opinion a few days since in the case of Lafon’s executors vs. Phillips & al., ante 225, in which we laid down a doctrine, that if confirmed in the instance before us, would be fatal to the pretensions of the plaintiff. We have deemed it however, proper to examine the subject as if presented for the first time: for the very circumstance of our having expressed the opinion just alluded to, has enabled us to derive
The system established by the Legislature in regard to the succession of deceased persons, has been eulogized by one of the parties, as the best that legislation has produced,- harmonious in its several parts,-admirably calculated to insure a speedy and equitable payment of the debts due,-to guard and protect the interests of absentees and minors, and
It would be sufficient perhaps, to refer to the opinion in the case already alluded to, for the reasons on which we there came to the conclusion, that the purchaser at a sale made by order of the probate court, took the property free from the liens existing on it; ant proceed at once to the further considerations, which the argument of the appellee has furnished. But it will enable us to take a more connected, and satisfactory view of the subject; to repeat here, at least in part, the
Referring however to so much of that opinion, as went to show, that it was a necessary consequence of the general system established in relation to the settlement of successions, that the mortgagee creditor, should be compelled to come in, and receive payment out of the proceeds of the sale, and not suffered to enforce his claim by a separate suit before the court of probates, or any other tribunal; we proceed to state, that the decision there made, was principally founded on three distinct, and positive provisions of our code, which present no ambiguity in their language, and nothing equivocal in their meaning. The first was that, which declares, that it shall be the duty of the judge to sell all the property of the deceased. The second, that which provides, that on the proceeds of this sale, the court shall settle the order of privileges and mortgages; and the third, that which directs, that any creditor, who after notice given in the manner prescribed, does not come forward, and obtain payment out of the fund in the hands of the curator, shall, (in the language of the law,) be without further resource, or
From these positive declarations of the Legislative will, we made in the former cases the following deductions. First, that the property which was subject to mortgages must be sold, as well as any other; for if it were not, all the property would not be disposed of. Second, that this property was sold without being subject in the hands of the purchaser to the mortgages previously existing on it, because the mortgagees had a right conferred on them to take the proceeds in preference to chirograph creditors; a right wholly inconsistent with the idea that these proceeds were only the balance of what the property sold for, over and above the amount for which it stood hypothecated. And lastly, that as there was neither resource, nor remedy, for the creditor who did not present his claim, to be paid out of the fund in the hands of the curator, that we could not sanction his right, to recover the amount due him, by a separate action.
After having again most carefully compared these conclusions, with the law from which they were drawn, we are unable to see, in what respect we have erred, or how any other
But to the effect, which we thought, and still think, necessarily followed a public sale made by order of the court of probates, several objections have been made, and it has been contended:
First. That the mortgagee should have been cited, and that in consequence of his not being so, he was not affected by the sale.
Second. That the construction given by the court must be erroneous, because it impairs the obligation of the contract, and is unconstitutional.
Third. Thai it is in opposition to the express provisions of the law, in relation to the planner mortgages can be cancelled and annulled.
I The counsel has referred us to the Spanish law, by which it is provided that the creditor who is not regularly cited to a judicial sale, does not lose the lien, or mortgage, which he may have on the thing sold. The authori
II. The constitution is said to be violated, because no judicial proceedings can affect persons who are not parties to them; because the contract is impaired-in releasing the mortgage, and in changing the term of payment.
The extent of the power of the legislature in regard to the remedies by which contracts are to be enforced, and injuries redressed, involves a question which has been as often agitated, and as keenly and anxiously debated, as any that has arisen since the formation of the governments of these states. By one class of jurists, it has been contended that this authority was unlimited: by another, this position has been strenuously denied. But amidst all the discussion to which this subject has given rise, it never has been controverted, that so far as the legislation was bonafide, and made with the view, and in the intention to give effect to engagements, that whatever in- conveniences, or even injuries, might result to the creditor from the awkwardness or
There is nothing in our law in regard to the settlement of the estates of deceased persons, which appears to us to carry the legislative power further than in several of the instances just put, and which does not come fairly within the limits of the discretion, which by the constitution is necessarily vested in those who have to provide remedies. The object of the provisions introduced into our code on this subject, was evidently to insure an equita
Considerable reliance has been placed on
It has been next urged, that the effect of the proceedings in the probate court, iS to release the mortgage without the consent of the mortgagee, and that this violates the constitution by impairing the obligation of the contract. Had the legislature positively directed that a release of the mortgage should have preceded a sale in the probate court, they would hae done nothing more than they have done in relation to insolvent estates, and which they surely may do, in any case where the object of the law is to facilitate a sale made to pay the mortgagee. That provision however was unnecessary for the security of the buyer, the moment they declared that out of the proceeds
As to the objection that the creditor is not obliged to receive his money before the debt falls due, much weight did not appear to be attached to it by counsel. We understand it to be a clear principle of our law, that the debtor has the right, and if after his death the law'prescribes it as an obligation on his representative to make the payment, the creditor at least cannot object he who pays later, perhaps pay less, but he who pays sooner, certainly does not. Pothier, traite des Ob. no, 233. Dig. liv. 50. tit. 17, l. 17, ibid 46, tit. 3, l. 70. Civil Code 276, art. 87 a 88.
It now remains to examine whether the conclusions to which we have come a re direct, opposition, as it is alleged they are, to the positive provisions of the code. We are
The article relied on, does not state, that mortgages may not b eleased, or cancelled, in any other mode except by the consent of parties, or a decree of the court; it declares they may be cancelled in this way, but uses no negative expressions; and even if it did, it would not prove that the mortgagee could exercise his lien in all cases where the mortgage was not expressly erased from the record. Because, as it is well known, these incumbrances may be extinguished, without being can-
If this then be the effect of the sale made in the ordinary course of justice, and we think it most clear that it is, in what does that now before us differ ? The sale made here was under a decree of the court-for the benefit of the mortgagee creditor-to enforce his lien and in order to insure him a prompt and ready payment of his debt.
On the whole, we conclude that there is neither a violation of the constitution, nor a disregard of any positive provision of the law, in holding that the claim of a mortgagee creditor is extinguished by a sale such as was made in this case.
It now only remains for us to consider the circumstances which are particular to this cause, and which it has been contended takes it out of the general rule.
The first is, that the act of mortgage contains the pact of non alienando; on which we think it sufficient to remark, that the provisions
The allegation that the sale was made without the proper advertisements, does not appear to be supported by the evidence. It was ordered on the 26th of September, and took place on the 25th of November; making a period of 60 days, and not 29, as was urged by the appellee.
The lowness of the price, and the circumstances attendant on the sale, have been pressed on us as evidence that the purchaser bought subject to the mortgages. The lowness of the price is good evidence to shew, that other persons who might have been inclined to buy, understood the law lobe, as the appellees have supposed it; but it is not evidence that the purchaser so understood it. On the contrary, the parish judge who acted as auctioneer, states expressly that on crying the property, he declared it to he his opinion that the purchaser would take it free from all liens. The whole of the transaction, as it appears on
We into this subject more at length than is usual, not because we felt any doubt on the law, but because it is important in the administration of justice, not only that we should arrrive at correct conclusions, but that we should also, as far as it is practicable, render the grounds on which we have come to those conclusions, satisfactory to others.
have gone
It is therefore ordered, adjudged and decreed, that the judgment of the court be annulled, avoided and reversed, and that there be judgment for defendant, with costs in both courts.