12 So. 2d 793 | La. | 1943
This is a suit on a promissory note for $3,000. It is signed by the defendant, L.L. Bogle, and is made payable to the order of the Pelican State Bank, plaintiff in the suit. Bogle pledged to the bank as collateral security for the $3,000 note a mortgage note for $2,500 signed by him, made payable to his own order and endorsed by him. The bank therefore, in its petition in this suit, prayed for recognition of its pledge of the mortgage note for $2,500, as well as for a judgment against Bogle for the $3,000, with the interest and attorney's fee stipulated in the $3,000 note. In his answer to the suit Bogle admitted that he had signed and issued both notes, and that he had granted the mortgage to secure the payment of the $2,500 note and had pledged that note to the bank as collateral security for the payment of the $3,000 note. He admitted also that he had made a certain payment of interest on the $3,000 note, which payment was endorsed on that note and had the effect of interrupting prescription of the debt represented by that note. But he pleaded that the mortgage note for $2,500 was extinguished by the prescription of five years, under article
The case was submitted to the district court on a stipulation of facts, conforming with the allegations of the petition and answer. The only question submitted to the court therefore was the question of law, whether the interruption of prescription of the note for $3,000 by the payment of interest on that note, which represented the principal obligation, had the effect of interrupting prescription of the mortgage note for $2,500, which was pledged as collateral security for the payment of the $3,000 note. The judge of the district court gave judgment for the plaintiff for the $3,000 sued for, with the interest and attorney's fee stipulated in the $3,000 note, but at the same time adjudged the $2,500 mortgage note extinguished by prescription, and ordered the mortgage canceled and erased from the mortgage records. The plaintiff is appealing from the judgment insofar as it maintains the plea of prescription of the $2,500 note. The defendant is not complaining of the judgment rendered against him on the $3,000 note.
It is well settled that, if a debtor gives something in pledge to the creditor to secure the payment of the debt, prescription does not run against the debt so long as the creditor retains the thing in pledge, with the consent of the debtor. In such a case it is not merely the giving of the *724
thing in pledge that interrupts prescription of the principal obligation; it is the continuous possession by the pledgee of the thing pledged, with the debtor's consent to such possession, that serves as a continuing acknowledgment of the debt — and is hence a constant interruption of prescription. Wilson v. Bannen, 1 Rob. 556; Montgomery v. Levistones, 8 Rob. 145; Citizens' Bank v. Johnson, 21 La.Ann. 128; Police Jury v. Duralde, 22 La.Ann. 107; Citizens' Bank v. Knapp, 22 La.Ann. 117; Citizens' Bank v. St. Amans, 23 La.Ann. 293; Citizens' Bank v. De St. Romes, 28 La.Ann. 125; Conger v. City of New Orleans, 32 La.Ann. 1250; Latiolais v. Citizens' Bank, 33 La.Ann. 1444; Citizens' Bank v. Hyams, 42 La.Ann. 729, 7 So. 700; Begue v. St. Marc, 47 La.Ann. 1151, 17 So. 700; Villere v. Shaw,
In Meyer Bros. v. Colvin,
"The whole testimony satisfies us that the transactions between Mahier and plaintiffs were carried on in open account, extending over a series of years, and varying in the balances shown, and that the mortgage note was really held as a continuing collateral security for this account.
"The acknowledgments deducible from the letters may, and probably do, refer to the debt thus due in open account, and do not operate as an acknowledgment of the *726 note itself, sufficient to interrupt prescription thereon."
In the case of National Union Bank of Oshkosh v. Parker,
"We may add that by the express terms of the contract the note was executed and delivered, not as evidencing the debt under the contract, but only `as further security for the payment' of any debt that might in the future arise under it, very much in the same way that sometimes mortgage paper is made for the purpose of being used as collateral security for some debt already created or to be created, and is pledged as such security, without itself representing any debt. Breaux's Digest, p. 599, No. 18.
"A case strictly analogous to the present is Lehman, Abraham Co. v. Mahier's Estate, 34 La.Ann. 319, where a note was held as `a continuing collateral security' for an open account; and letters referring to the open account were held not to have interrupted prescription on the note."
Lehman, Abraham Co. v. Estate of Mahier, 34 La.Ann. 319, and National Union Bank of Oshkosh v. Parker,
The decision in the case of American National Bank v. Bauman,
Our conclusion is that the judgment appealed from is correct.
The judgment is affirmed.
ODOM, J., absent.