28 La. Ann. 357 | La. | 1876
On the twenty-first day of 'July, 1873, Charles Carpenter ■executed two mortgage notes-on his plantation known as the “Willow ■Glen plantation,” one of said notes being for twenty-six hundred dollars ■and the other for fire thousand five hundred dollars, both drawn payable to his own order and by him indorsed; and the mortgage was in favor of Benjamin B. Thomas and any future holder or holders of said two notes or either of them.
In January, 1875, Thomas, for the use of Thomas P. Farrar and Elias S. Dennis, foreclosed the mortgage by suing out an order of seizure and sale. Plaintiff, J. S. Richardson, the transferee of Carpenter, subsequent to the service of the notice of seizure sued out this injunction to restrain the sale on the following grounds, which he urges in this court:
First — That Thomas, the mortgagee, was not a creditor of Carpenter; the latter never owed him any amount.
Second — There was no actual seizure made by the sheriff.
Third — There was no notice served on Carpenter by the sheriff to divide the land into lots of from ten to fifty acres.
The defendants charge that the 'pretended sale to Richardson by Carpenter was a simulation to evade the pursuit of his creditors, and that there was no change of possession. They pray for a dissolution of the injunction, with damages.
' The court came to the conclusion that the title set up by plaintiff was a simulation, and dissolved the injunction with five hundred dollars damages and ten per cent interest on the amount enjoined.
Plaintiff appeals.
Defendants answered, joining in the appeal, and praying for an increase of the damages. Subsequently, they moved to dismiss the appeal for the want of citation to all the appellees. After joining in the appeal the defendants could not ask a dismissal thereof for the informality stated.
The motion is therefore denied.
On the merits, wo think the judgment of the court a qua is correct.
■ It is not pretended that the notes do not evidence a valid debt duo by Carpenter, the maker. Whether he owed the nominal mortgagee or not is immaterial. A mortgage may be given to secure a future debt. D’Meza vs. Generes, 22 An. 285.
Here the mortgage to secure the notes made to the order of the maker and indorsed by him was in favor of “ Benjamin B. Thomas and any future holder or holders of said two notes or either of them.”
The moment they passed to Farrar & Dennis, the real owners, and became evidences of a valid debt owing by Carpenter, the mortgage to secure their payment attached.
But an examination of this case satisfies us that the title set up by plaintiff was a mere simulation. Carpentel- remained on tho premises, and the law presumes simulation. Ko proof was adduced to establish the verity of the salo. The pretended transfer was made after notice of seizure had been served on Carpenter. Richardson never went into possession under the protended sale.
Judgment affirmed.