Graham v. Tignor

23 La. Ann. 570 | La. | 1871

.Taliaferro, J.

Two of the defendants in this case having puv~ •chased, under an act of the Legislature approved eighteenth March, 1858, one-half of the sixteenth or school section of land within one of the townships lying in the parish of Claiborne, executed, in solido with their surety, nine several promissory notes, each for $88, dated first 'October, 1859, and payable consecutively, one noto each year, on the first of October, with, its accruing interest from date, with special mortgage on the land purchased. These notes wore, in conformity witli law, drawn payable to E. W. Robertson, then Auditor of Public Accounts, or his successors in office. None of these notes having been paid, the present plgintiff, in his official capacity, brings this suit to •enforce payment.

The defense is prescription. The judge a quo sustained the plea as to the first six notes of the series, and rendered judgment against 4he defendants for the remaining three, according to their tenor, hut without enforcement of the mortgage. Prom this judgment the plaintiff has appealed.

The sole question in this case is, does prescription run against the •State on the notes sued upon 9 The defendants rely upon articles 3521 and. 3540 of the Civil Code, and upon several decisions of the Supreme Court of the State, and especially upon that of Pepper v. Dunlap, 9 An. 137. Article 3521 declares that “prescription runs against all persons, unless they are included in some exception established by law.” Article 3540 declares that “all actions on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable or transferable by indorsement or delivery, and those on all promissory notes, whether.negotiable or otherwise, are prescribed by five years.” It is held by the defendants that these articles of the Civil Code have a clear and direct application to the case at bar, the State being a body politic or person, and the action being' upon a promissory note.

Our Code seems clearly to determine that prescription applies without discrimination unless where there are express exceptions. We find no express exception in favor of the State. In the case presented, we think prescription does apply. The notes sued upon are secured by mortgage, and the plaintiff prays that the mortgage be recognized and enforced. We think the court a qua should have so decreed, and in -this respect the judgment should bo amended..

It 'is therefore ordered, adjudged and decreed that the judgment of the district court be amended so as to embrace the order now rendered, that the mortgage of plaintiff be recognized and enforced as prayed for, and that the lands stipulated in the petition of plaintiff and the act of mortgage made part thereof, be seized and sold to pay and satisfy ■the three promissory notes and interest for which judgment was rendered by the court a qua, and, as thus amended, the judgment be affirmed, with costs in both courts.