28 La. Ann. 331 | La. | 1876
Lead Opinion
This is a proceeding via exeeutiva to enforce the payment of a note for forty-eight hundred and fifty dollars with interest,
First — That he is the bona fide owner of the property upon which the mortgage was sought to be enforced, having bought it from G. Marks, by act before A. Pitot, notary, on the twelfth of April, 1873, to which act was annexed a certificate of the recorder of mortgages showing there were no mortgages against the property.
Second — That the note sued on had been legally compensated, the mortgage securing the same canceled, and its inscription erased prior to his purchase under a decree of the Second District Court for the parish of Orleans, validly rendered in the matter of the succession of G. H. Scott.
Third — That the effect of the erasure was that the property passed to him unincumbered.
Fourth — That plaintiffs by judicial admissions made in a suit by them instituted in the Second District Court under No. 36.552 of the docket wore estopped from proceeding to enforce their pretended mortgage by executory process, and must exercise their rights, if they have any, by the hypothecary action.
Fifth — That plaintiffs were not bona fide owners and holders of the note sued on.
To this intervention a general denial was pleaded by the original plaintiffs, with a prayer only for the dissolution of the injunction with damages.
The issue thus made was tried and the injunction was dissolved without damages, and the intervenor appealed. In this court he pleads the prescription of one year in bar of the plaintiff’s suit. The controversy in this case is between the plaintiff and the intervenor.
It appears that on the eighteenth of January, 1868, Wyatt C. Cutler borrowed of Mrs. Elvira Lamb, widow of George H. Scott, the sum of $4850, for the payment of which he gave the .note sued and secured its payment by mortgage on the property now claimed by intervenor as having been purchased by him free from incumbrance. In July, 1872, Cutler filed in the Second District Court an application to administer the estate of George H. Scott, deceased. His application was opposed by the public administrator, who obtained the administration. An inventory was made, and Cutler declared at the making of it that “ to his personal knowledge the deceased left a sum of from five to six thousand dollars; that a part of that sum, $4850, was invested in a mortgage granted by him in favor of Laura Lamb, widow of George H. Scott, by
Tlio hinge upon which this controversy will turn is the determining the character of this proceeding and settling upon its legal effect.
The testimony shows satisfactorily that the plaintiff has hold continuously the note upon which the mortgage was predicated and the same on which she proceeded via executiva. It is also clear that she was not a party to the jn’oceeding by which it is held the mortgage was erased, and that she knew nothing of it. She produces a number of Cutler’s letters in which he treats with her as the holder of the note, remits her the interest — some of the letters having been written and one of the payments of interest having been made after he had procured the order of erasure from the Second District Court. She shows clearly how she obtained the money she loaned to Cutler, when she got it, and by what means..
The intervenor contends that the property having been acquired by him, he should have been proceeded against. But the mortgage contains the pact de non alienando, which enables the holder of the mortgage to proceed against the property .into whose hands soever it may have passed, unless by some act or admission he has lost his right to the remedy. And hero on the part of the intervenor it is contended that such admission or estoppel results from a certain suit instituted in the Second District Court by the plaintiff against Scott’s succession and Cutler to have “ the seeming decree of the fifteenth of October, 1872, recognized as absolutely null and void ab initio. The case, it seems, was tried and decided against the plaintiff, a new trial granted, when the suit was discontinued and the present suit brought. The question seems to be, was the mortgage legally erased ? We think it was not. There was beyond doubt fraud practiced in procuring the pretended erasure. The facts
We come to the conclusion that the decree of the district court was properly rendered.
Judgment affirmed.
Rehearing
Ox EeheaRixg.
After re-argument of this case, and on further consideration thereof, wo have concluded that our first judgment herein was correct.
The proceeding in the Second District Court to erase the mortgage owned by plaintiff was not binding on her, because she was not a party; furthermore, that court was without jurisdiction to adjudicate upon her rights, it being a court of merely probate jurisdiction. The wrongful erasure of plaintiff’s mortgage did not impair her rights.
It is therefore ordered that our former judgment herein remain undisturbed, -