Dupuy v. Dashiell

| La. | Mar 15, 1840

Bullard, J.,

delivered the opinion of the court.

This is an appeal from an order of seizure and sale granted at chambers, upon the presentation of authentic evidence of a mortgage on the property ordered to be seized. It appears that the property belonged originally to' Dupuy, who sold to Lesassier, reserving a mortgage ; and that Lesassier sold to the present defendant and appellant, who assumed to pay the plaintiff’s claim.

The clause in the act of sale from Lesassier to Dashiell, upon which this proceeding is founded, is as follows : “ and, whereas, it appears, &c., that the said property is subject to the following mortgages: 1st. One in favor of Marcel Dupuy on the first portion of said land, and on nine of said slaves, for the amount of thirteen thousand and two hundred dollars, and interest, of this debt. The vendor declares that he has paid all the interest and about four thousand dollars. Now, it is agreed that the sum of eleven thousand dollars capital,” &c. Here the copy is so defective, from an omission, that we are compelled to conjecture an assumption on the part of Dashiell to pay. But it is clear and even admitted during the argument, that the order of seizure issued for too much according to the evidence before the judge who granted jt. The amount appears to have been left open by the parties for ulterior adjustment, and as the sum due and assumed to be paid, is left doubtful, the plaintiff ought to proceed by ordinary suit.

It is, therefore, ordered and adjudged, that the order of seizure heretofore granted by the district judge, be rescinded, reversed and annulled, and that the plaintiff pay the costs of both courts.