62 So. 599 | La. | 1913
Maurice Levy, the plaintiff, caused executory process to issue upon a mortgage given him by Mrs. Desposito, and the mortgaged property to be seized and sold. Jacob Nienaber filed a third opposition, claiming a superior right over the proceeds of the sale by virtue of a vendor’s privilege and prior mortgage. The contest is between Levy and the third opponent.
The history of the matter is as follows: Mrs. Desposito, desiring to create mortgage paper which she might negotiate, made a sale of her property to one Raine, part credit and part cash; the credit part being represented by a $1,800 note. Some days later Raine made a resale to her, she assuming, as part of the price, the payment of the $1,-800 note given by Raine. She then negotiated this note to Robert J. Maloney, the notary before whom the acts of sale and resale had been passed. She paid interest on this note for two years to Maloney, and then, desiring to retire it, borrowed money for that purpose, and charged the notary before whom the act was passed by which the loan was made to her, Mr. Loomis, to make the payment .to Maloney. Maloney received the payment, but, instead of surrendering this $1,800 note, surrendered a counterfeit of it. Mr. Loomis, thinking that the genuine note had been paid, issued a certificate for the cancellation of the inscription of the mortgage securing it, and the cancellation was made. Later Mrs. Desposito borrowed money from Levy and gave him the mortgage he is now foreclosing. In making this loan Levy acted upon the faith of a certificate of mortgages, which did not show the existence of the vendor’s privilege and mortgage securing this Raine $1,800 note, the inscription of which had been canceled. Maloney transferred to Nienaber, the third opponent, the genuine $1,800 note. Whether before or after the payment made to him by Loomis, notary, is one of the questions in the case. The payment was made in January, 1905. Nienaber claims to have acquired the note in April, 1904. The indorsements of the payments of interest on it of July 16, 1903, July 16, 1904, and July 16, 1905, are in the handwriting of Maloney. Nienaber never called upon Raine or Mrs. Desposito for the payment of interest." He says that he re
The genuine note is dated July 16, 1902. The notarial paraph upon it reads:
“Paraphed ne narietur by me, notary, to identify same with an act of sale and mortgage passed before me this (16) (24)th day of July, 1902. New Orleans, July 16th, 1902. Robert J. Maloney, Notary Public.”
There can be no serious denial of a $1,800 note having been executed to represent the credit part of the 'sale to Raine, and of the payment of this note having been assumed by Mrs. Desposito as part of the price of the sale to her. And there can be no serious denial of the note sued on being the note thus assumed; for Raine testified to that effect, and the only rival note that has turned up is manifestly a forgery — a bungling piece of work — made payable, for instance, at a bánk not in existence at its date.
“That petitioner’s note and mortgage is prior in date and rank to the mortgage held by Maurice Levy.”
And (in supplemental petition):
“That petitioner is the holder and owner of the note aforesaid, and by virtue thereof is entitled to be paid by preference,” etc.
But these allegations are merely the statement of a conclusion of law; the fact itself upon which that conclusion is based, namely, the prior registry, is not stated. Not having alleged this registry, the third opponent should not have been allowed, over the objection of Levy, to prove it; and without its proof the third opponent has no case.
The only question must, therefore, be whether this suit shall be remanded a second time to afford the third opponent another opportunity to mend his case, or shall be nonsuited, or shall be dismissed. This third opposition has already been pending a very long time, and there should be an end to litigation, especially in a case like this, where mortgage rights are being enforced.
The strong evidence to the contrary carried by the indorsement on the note of the payment of the interest of July 16, 1906, in the handwriting of Maloney, can be met by Nienaber only with his own testimony; and however sincere this testimony may in reality be, we should hesitate very much to allow it to overbear all the contrary inferences and probabilities in the case, especially in view of the questionable shape in which it appears in the record.
On the second trial he testified positively to the date when he acquired the note, and produced the stub of the check which, he says, he gave in making the acquisition; whereas he had testified on the first trial as follows:
“I was doing business in 1902 with Whitney Central Bank, and I went to the Teutonia Bank, and then I also went over to the Metropolitan Bank with my private account. I paid Mr. Maloney $1,800 for this note with a check.
*133 “Q. Have you hunted for the check you gave him?
“A. Yes, sir; but I could not find it.
. “Q. Have you a copy of the stubs of your chock book?
“A. No, sir.
“Q. What did you do with them?
“A. Well, after three years I generally destroy them. I burnt them up at my place of business.”
The check thus said to have been given was for only $1,600, which is another discrepancy.
“Can you explain how your memory is so much better after the lapse of two years and a half than it was when you testified [October 1909]?
“A. The only thing I can recall is that I had no other $1,600 note, and I am positive that this is the transaction.
“Q. Then your only reason for saying that this $1,600 was given for this note is that you had no other $1,600 transaction, or any approximating that?
“A. Yes, sir.”
Just one month before testifying on the first trial of the case, Nienaber had offered in evidence the check book containing the stub in question in a suit of his against another party on a note purchased by him from the same Maloney.
And after all has been said, and even conceding that he acquired this note before said payment, the incontestible fact yet remains that he has himself to blame in large measure for the unfortunate position in which he and Levy find themselves; for by accepting payment of interest from Maloney, who was not a debtor on the note, he afforded the latter the opportunity to practice the fraud from which has resulted the loss that must now be visited either upon him or upon the wholly innocent Levy, who parted with his good money upon the faith of a clear certificate of mortgages.
The judgment appealed from is set aside, and the third opposition is rejected. The third opponent to pay all costs.