18 La. Ann. 130 | La. | 1866
Defendant has appealed from an order of seizure and sale, granted by the Judge of the Sixth District Court of New Orleans.
Defendant, in order to obtain the reversal of the fiat of the Judge, contends that the copy of the act of mortgage, which forms a part of the evidence on which the order was granted, was not certified in conformity to law.
No objection can bo raised to the form of the certificate, as it is sufficiently formal, and the question, whether the copy is in conformity to law depends on the solving of two questions. 1. Whether the notary who certified the copy was the legal custodian of the original record ? 2. Whether, as custodian of the original record, he could legally certify to a copy thereof ?
The original act, which is in authentic form, was passed before Felix Grima, a Notary Public of the Parish of Orleans. On his ceasing to be a notary the act passed in to the custody of Theodore Guyol, a notary of said parish ; and on his ceasing to be a notary it passed into the custody of Felix McCulloch, also a notary of said parish, who certified that the copy in evidence, was a true copy of the original act in his custody, as successor of Theodore Guyol, late Notary Public.
When a person appointed a Notary Public for the Parish of Orleans, ceases to be such, the law, (see statute 1857, p. 85, § 3,) makes it the duty of the Governor to designate by order, under the seal of the State, the notary to whose custody the records of the former notary shall be consigned, and Courts are bound to presume when a Notary of the Parish of Orleans certifies that he has in his custody the record of a former notary of the parish, that the Governor has properly discharged his official duty, and has designated him, the notary, as the custodian thereof.
Defendant further contends that the order of seizure and sale was improperly granted, because the mortgage was given to secure the judgment of another note, besides the notes to enforce the payment of which the order was granted, and that the order should have provided for the payment of the outstanding note. The outstanding note was due before the order of seizure and sale was granted.
This question of practice has been settled in the case of Armon, Executrix, v. Downes, 2 Ann. 243.
The decree of the District Judge is affirmed, with costs.
