Hall v. Chachere, No. 772

No. 772 | La. | Jun 15, 1873

Lude ling, C. J.

This suit was commenced by third opposition on •the part of the plaintiffs, claiming to he paid by preference out of the proceeds of the sale of certain property, seized and sold as the property •of one Harwell, under executions issued under judgments in favor of Miller & Forestier, and Posey, agent of Frank Perret, against said Harwell.

It appears, from the record, that Robert R. Harwell sold to Archibald Mathews a plantation and slaves for $34,000 — $8000 cash and the remainder in four installments, for which Mathews executed his mortgage notes in favor of Harwell or order. One of these notes, for $8000, was transferred to Perret shortly after the sale; two of them were pledged by Harwell with Clark, and the other was also trans-' iierred, but it does not .appear to whom.

In March, 1855, Mathews mortgaged the property bought by him to ílall, Rodd & Putnam to secure a debt due them, and then he retransferred the property to Robert R. Harwell, who, as a part of the considei ation of the retrocession to him, assumed to pay the notes (executed by Mathews for the price of the first sale), which lie had then disposed of as aforesaid. After the retransfer to Harwell, Miller & Forestier obtained judgment against him, and recorded their judgment in the parish where the property is situated. Perret also-obtained judgment on the note for $8000, which he held, recognizing his mortgage, and against Harwell personally. Miller & Forestier caused execution to be issued under their judgment on the twenty-sixth of November, 1858, and a few days thereafter Perret caused an execution to be issued under his judgment. The property was sold under these executions, and Perret bought it for $23,000. The execution of Perret was credited with the amount for which it issued,, and he retained the balance of the price bid to pay the special mortgages, appearing to exist on the property.

' It further appears that the two notes, which had been pledged to (¡lark, were redeemed by Harwell, and transferred to Perret.

The main contest is concerning the effect- of the return of these two notes to the possession of Harwell, after he had assumed their payr ment in the contract with Mathews, by which he repurchased the-plantation for which the notes had been given. If they were extinguished when they were returned to his possession, by payment or otherwise, the fund to be distributed will be ample to pay all the contesting creditors.

What, then, was the effect of the obligation of Harwell towards-Mathews, in regard to the mortgage notes given by him ¥ Clearly he assumed Mathews’ obligation to pay the notes ; and when he acquired, them, he discharged the obligation assumed by payment. If, on the other hand, he was always the owner of said notes, they were extinguished by confusion so soon as he assumed the obligation to- pay them. “ When the quality of debtor and creditor are united in the same person, there arises a confusion of right,, which extinguishes the obligation.” C. C. 2217. The principal obligation being extinguished, the accessory obligation necessarily ceased to exist. And conceding that Harwell could reissue the notes, it is clear he could not have revived the mortgage — merely by reissuing the notes. Mortgages are not subject to the rules of the commercial law by which the rights and obligations of parties to commercial paper are fixed. 4 R. 416; 20 An. 264, Dale v. Risotti.

It is, however, contended, that a part of the price bid was for slaves, and that, under the jurisprudence of this State, to this extent the purchaser is entitled to relief. The sale was for cash. The adjudicate© complied witli his bid and received the title and the property. The undistributed portion oí the price was held subject to the order of the court. To all intents and purposes, the sheriff’s sale is an executed, contract — and this contest relates only to the distribution of the price.

It appears that since the appeal was taken, the appellant has paid the judgment in favor of Hall, Rodd & Putnam. This is an abandonment of the appeal as to them.

It is therefore ordered and adjudged, that the appeal be dismissed, as to Hall, Rodd & Putnam; and that, as to the other appellees, it be affirmed, with costs of appeal.