49 La. Ann. 1590 | La. | 1897
The opinion of the court was delivered by
The plaintiff, a judgment creditor, seeks to have set aside as fraudulent the mortgage made by his debtor to secure the
The debtor made the mortgage a short time before the plaintiff recovered its judgment. The mortgage was in favor of any future holder. The mortgage note passed into the hands of Mrs. Alexander, who is the aunt of the debtor, and he lived with her. She is shown to be a lady of means and of advanced age. Her testimony is she acquired the note for fourteen hundred and forty dollars.
The petition contains the allegations appropriate to a suit of this character; the insolvency of the debtor, that there was no consideration for the mortgage, that it was made to defeat plaintiff’s rights; operates to plaintiff’s injury; that Mrs. Alexander concurred in the debtor’s fraudulent purposes and acquired after maturity. The answer of the debtor and that of Mrs. Alexander maintains the validity of the mortgage and her title to the note.
It is claimed by plaintiff that the note was returned to the maker subsequent to its execution, and remained in his hands after its maturity. Hence it is contended the mortgage became void. We find no occasion to examine the legal proposition advanced by the plaintiff, in reference to the avoidance of the mortgage. The record does not furnish the basis of fact for the proposition. The testimony satisfies us the note was issued to Mrs. Alexander for the first and only time it was used by the maker, and was never returned to him. When produced by her in court the note bore the endorsement “bought 10th August, 1895,” and although Mrs. Alexander was unable to state from her own recollection the date of her acquisition of the note, the endorsement harmonizes with the usual course to negotiate notes before maturity, and we see no basis on which we can reject the endorsement and the presumption of negotiation before maturity. This view, too, precludes any necessity for discussing the contention of plaintiff that the issue of the mortgage note by the maker, after its maturity, will affect the mortgage, or, at least, require supporting proof from the holder, especially as in this case there is the testimony in the record on the subject.
To impeach the note and mortgage plaintiff urges that the purpose of the transaction was to shield the property of the mortgagor from his creditors. But if Mrs. Alexander in good faith bought the note,
It is therefore ordered, adjudged and decreed that the judgment, of the lower court be affirmed with costs.