Rawle ex rel. Russell v. Skipwith

19 La. 207 | La. | 1841

Mathews, J.

delivered the opinion of the Court.

Skipwith the husband, being indebted to ffm. RUssell, of the kingdom of Great Britain, made and executed in favor of Wm. Rawle, of Philadelphia, his attorney in fact, on the first day of May, 1818, six several promissory notes, payable at different times, or annual installments, for the sum total of $11,500. The last installment or note became due in January's 1824. In December, 1819, the defendants sold to one Josias Gray, fot $45,000, payable at several installments, a plantation and slaves, situate in the parish of East Baton Rouge. In the act of sale, they retained a mortgage until perfect payment. Some time after the sale (the record does not state the precise period) the defendants appeared before a Notary Public, and by an instrument of writing executed before him, declared that they were justly indebted to him (Rawle of Philadelphia,) in the sum of $11,500, for which they bound themselves in solido ; and for the better securing thereof assigned and transferred to Rawle as much of the debt due them by Gray as would satisfy the obligation thus entered into. The act concludes in these words : “ This act is passed to secure the payment of six notes all executed the first day of May, 1818, amounting together to the said sum of $11,500, which notes are not here to be delb vexed up to the obligors : It is therefore understood that they are discharged by this act, and are to be destroyed and delivered up to the obligees, on or before the time- the first payj ment becomes due, as mentioned in this act.” To this instrü* ment the names of the defendants are affixed. Nothing shows however, that it was accepted or assented to by the obligee, at the time it was made, nor at any subsequent period, up to the commencement of this suit. An additional contract was entered into by one of the obligees, which adds another feature to these transactions. From some cause or other Gray did not comply with the condition of the sale made to him by the defendants, and in December 1828, he sold to one of them (Skip-with the husband) the plantation and slaves he had previously purchased from him and his wife. In this act Skipwith binds himself and promises to pay to Rawle the $11,500 with interest ; part of the debt due by Gray, which had been assigned by the obligees, as already stated, to Rawle. Thus we find the plaintiff to have obtained three different obligations for the debt due to him. First, the note of the husband : second, the assignment of a debt due to the husband and wife : and third, the obligation of the husband to pay the debt so assigned. The petition in this case sets out these different acts and states that the defendants are indebted to the petitioners in the sum of $11,500, with interest at the rate of six per cent on the original notes from the time they respectively became due, until the first day of March, 1822. From that time until the first day of March,-1824, at ten per cent.; and from that date until paid* at five per cent. The petition concludes with a prayer for judgment against them in solido ; and that the petitioner may be declared to have a mortgage on the land and slaves sold by the defendants to Gray, and by Gray re-sold to Skipwith, The defendants pleaded separately. The husband averred ;

1st. That the notes sued on, had been novated by the assignment made to the plaintiff of the debt due by Gray; and that the ordinary hypothecary action must be commenced against him.

2d. That the suit is brought for the use of Russell, when it ought to be for the payee Rawle.

3d. That the action of mortgage cannot be maintained directly against the defendant, because the plaintiff’s right of mortgage to it is derived from, an assignment of the defendant and wjfe agrainst Gray ; and the re-transfer or sale from Gray to fbe defendants does not confer a right on the plaintiff to exercise the actions directly against the defendants. !> a

Where all the contráetsareTet out m the plead-mgs, if any one of them will authorize judgment,'the court should render it. irrelevant or doe^not vitiate the good. vinglethe'tlegS ™ay saefor whom he pleas-manner asSal)íe of the funds* after judgment if he sued in Jus own name.

_ The wife pleaded;

1st. That the debt had been novated by the assignment of fhe debt on Gray.

3d. That the suit should have been brought in the name of Rawle and for his own use and benefit.

3d. That she contracted the debt for the benefit of her husband, and as his surety, and is not bound.

4th. That the plaintiff had accepted Gray as his debtor, and that she had not become a party to any subsequent act by which she became responsible for the debt. The assignment of the debt due by Gray was made on the condition that the six notes should be given up or destroyed.

The plaintiff, by bringing suit on the assignment and claiming the benefit of it, has ratified and confirmed the condition on which it was made. The District Court therefore did not err in considering there was a novation of the debt due by these notes. But we do not see how the novation of these notes destroys the plaintiff’s action in the form it is presented. All the contracts and promises are set out in the pleadings ; and if any r ° J one of them will authorize judgment against the defendants, it J 5 & is the duty of the court to render it. The irrelevant matter in . . , , petition does not vitiate that which is good. We see no groun(i whatever for the second objection. The legal title is jn Rawle, and he may sue for whom he pleases, in the same manner he might make any disposition he chose of the funds a^ter judgment» if be had sued in his own name. And as to the exception in relation to the hypothecary action, that the defendant Skipwith, who is the principal debtor, must he considered as a third possessor, because the property mortgaged to by Cray has come into his hands by a re-transfer of the ’ mortgage, we cannot examine it now, because the right of & _ & mortgage must depend on the plaintiff’s establishing his debt; And whether that he due or not we cannot decide ; for when a cause goes off in the court below on an exception taken in limine litis, it cannot on appeal be examined on the merits. Although the court decided correctly that the notes set out in the petition were novated, it erred in dismissing the cause ; as there is sufficient matter set out in the pleadings to authorize a judgment independent of them.

Where a case is dismissed on an exception in limine atis, the Supreme Court cannot examine it on the merits. It must he remanded for a new trial.

It is therefore ordered, adjudged and decreed that the judgment of the District court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed that this cause be remanded to the District Court to be proceeded in according to law; the appellee paying the costs of this appeal.