17 La. Ann. 58 | La. | 1865
This is an appeal from an order of seizure and sale, upon a note secured by mortgage and protested for non-payment.
Appellant, the mortgagor, assigns for error, on the face of the record :
1. The mortgage is not good and valid, according to law, because it purports to secure the payment of the premium of insurance and, the reimbursement of lawyers’ fees, and there is no exact, certain and determinate amount stated. C. C. 3277.
Because the waiver of appraisement cannot be legally made by the debtor and mortgagor.
The failure to declare in the act the exact amount of the premium of insurance (whióh is a mere incident to the contract) does not invalidate the mortgage, the object of which is to secure the payment of the note, the evidence of a debt fixed and certain. The clause relating to insurance confers an additional protection, of which the mortgagee may avail himself, in a legal manner, under the stipulation. The amount of the lawyers’ fees is made legally certain in the act.
The question of the evasion of appraisement need not be inquired into here, as the order is to sell according to law, and it is presumed the sheriff will do his duty. See 2 A. 416.
2. The order of the court is not legal, because the judge directs that the property be sold by executory process, to pay the premium of insurance and the cost of the protest of the note ; and there is no evidence, authentic or of any kind, respecting these claims.
This objection seems to be well founded.
Executory process can issue only upon authentic evidence; and we find nothing in the record to establish the amount of these two items. 1 A. 279. 6 A. 466. This being an ex parte proceeding, the seizing creditor must, at his peril, look to the accuracy of his demand and of the decree.
It is therefore ordered that the decree of seizure and sale be amended, so as to exclude therefrom the items of three dollars, costs of protest, and thirty dollars, amount of premium of insurance ,• and that, so amended, said decree be affirmed, with costs of the lower court, the costs of this appeal to be paid by the appellee.
