5 Rob. 70 | La. | 1843
This is an appeal from an order of seizure and sale, granted on the petition of the plaintiff, as transferee of James Erwin, who sold the property to the defendants. The act of sale shows, that four lots of ground, therein described, were offered for sale at public auction, and adjudicated to the defendants ; to wit, Peters & Millard, Henry Lockett, and John Greene, for the sum of $37,800, at a credit of six months without interest, and one, two, three, four, and five years, with six per cent interest per annum, for approved endorsed notes, secured by special mortgage, until final payment. The act of sale was passed accordingly, to the three purchasers, all present and accepting, according to a plan deposited in the office of the notary, for and in consideration of the said sum of $37,800, for which, three sets of notes, endorsed by different persons, corresponding with the terms of the adjudication, were given to the vendor ; to wit, the notes of Peters & Millard, endorsed by Henry Lockett, those of Henry Lockett, endorsed by Peters & Millard, and those of John Greene, endorsed by James Ogilvie, all paraphed, “ ne varietur,” by the notary. The act of sale further stipulates, that to secure the payment of the aforesaid notes, the purchasers hereby mortgage and specially hypothecate the herein described property; and at the
The petition represents, that all the notes described in the act as being drawn by Henry Lockett and Peters & Millard, have been paid ; but that the following described notes, drawn by John Greene, are still due and unpaid, to wit1 six several promissory
The question presented in this case, is one of considerable difficulty, and we must confess, that the conclusion which we have adopted is not free, even in our own minds, from objections which may be urged with a certain degree of plausibility ; but they have appeared to us mere specious than solid, and we feel convinced, that our judgment is based upon a correct application of the true principles of law which should govern this case, and is in accordance with the real intention of the parties at the time of the contract.
On the one hand, it is contended, that the plaintiff’s mortgage reserved in the act, and therein declared and stipulated to secure the payment of the notes, extends over all and every part of the property sold, to be exercised on the four lots until the complete payment and satisfaction of the whole price, principal and interest ; that the vendor never meant to divide his security; and that the purchasers, although they fixed their respective proportion of interest in the property purchased, as between themselves, by the last clause contained in the act, fully understood, that the entirety of the property purchased was to be the security for the purchase money.
On the other hand, it is insisted, that the division of the property. or of the purchasers’ interest therein, was provided for in the act of sale ;■ that the vendor consented to such division ; that he took the separate notes of the purchasers accordingly, and that it was distinctly and perfectly understood, that the payment of the notes by one of the vendees, would extinguish his obligation, and give him a title free from the vendor’s mortgage upon his portion.
It will be conceded, that the obligation contracted by the purchasers of the property ordered to be seized and sold, was a joint one; and that, had they given no notes for their respective portions of the price, they would have been bound jointly for the payment of the purchase money. 13 La. 448. Civil Code, art. 2075.
In the case of Walton & Kemp v. DeLizardi, 15 La. 593, in which, we confess, the clauses and stipulations of the act of mortgage, were much stronger than those under consideration, and put the question out of the reach of any doubt, we recognized certain legal principles, which, in our opinion, are applicable to the case at issue. We said, that “ the mortgage is in its nature indivisable, and is a legal right on the property bound for the discharge of the obligation.” Civil Code, art. 3249. This general rule,
It has been urged, that the act contains the stipulation, that
Upon the whole, we conclude from the context of the act, that the intention of the parties was not to become bound for each other, nor as the security of each other, and that the plaintiff has not shown himself entitled to the seizure and sale of the whole property, to satisfy the one-third of the price, due by John Greene. It was the duty of the vendor to have required stipulations to that effect; and having not done so, when it was in his power, we cannot relieve him. Adore non probante, absolvitur reus. Another maxim, in cujus erat potestate legem apertius dicere, is peculiarly applicable to his case.
It is, therefore, ordered, that the judgment or order appealed from, be so modified as to extend only to the seizure and sale of John Greene’s undivided third of the property, described in the plaintiff’s petition. The costs of this appeal to be borne by the plaintiff and appellee.
The clauses of the act of sale material to the question, are as follows :
“Before me William Young Lewis, notary &c., personally appeared James Erwin ■who declared, that in pursuance of a public sale, the property hereinafter described and owned by the said appearer, was adjudicated to Peters & Millard, Henry Lockett, and John Greene, for the sum of $37,800, at a credit of six months without interest, and one, two, three, four, and five years, with six per cent interest per annum, for approved endorsed notes, secured by special mortgage, until final payment,” &c. “ Now, therefore, in consideration of the premises, the said James Erwin does, by these presents, grant, bargain, transfer, sell, convey and deliver unto Samuel Jarvis Peters and Charles Millard, trading under the firm of Peters & Millard, Henry Lockett, and John Green, all present and accepting, the following described property.” &c. “ This sale is made agreeably to the aforesaid adjudication, for, and in consideration of the sum of $37,800, payable as follows [Here follows a list of the notes; those of Peters & Millard endorsed by Lockett, those of Lockett by Peters & Millard, and those of Greene by one Ogilvie.j “ To secure the payment of the aforesaid notes, with all interest and costs thereon, the said purchasers hereby mortgage and specially hypothecate the herein described property, promising and binding themselves not to alienate or encumber the same to the prejudice of the said act. To have, and to hold, the aforesaid property unto the said purchasers, to their proper use and behoof, forever; and the said vendor, for himself, his heirs, and assigns, unto the said purchasers, their heirs and assigns, the herein described property, against the legal claims of all and every person and persons whomsoever, shall and will forever warrant and defend by these presents, hereby subrogating and transferring to said purchasers, all his rights of warranty and action against his vendor and all preceding vendors, with full power to exercise the same according to law. The said purchasers hereby declare that they are interested in the herein described property, as follows, viz: Peters & Millard for the one-third interest, and Henry Lockett, and John Greene, each, for one-third interest.”