Serapurn v. La Croix, 1 La. 373

Serapurn v. La Croix

1 La. 373 | La. | 1830

Martin, J.

delivered the opinion of the court. The plaintiff seeks to obtain satisfaction of a judgment against her mother and tutrix, by the seizure and sale of a house and lot, purchased from the latter by the defendant.

He resisted her intentions, under a legal subro'gation to the right of the mother’s vendor, to whom he alleges he has paid six thousand dollars, the balance of the consideration of the sale from this vendor to the plaintiff’s mother. The plaintiff contends, this sum was paid by the defendant to her mother, as the consideration of the sale between her and himj and that he did not pay her mother’s vendor, but on the contrary, she, the mother, after having received the defendant’s money, paid a larger sum to her own vendor, on the balance of the price due to the latter.

There was judgment for the plaintiff and the defendant appealed.

*377The facts of the case, as they appear . from the record, are, that the plaintiff’s mother, having purchased the premises, while she was the plaintiff’s tutrix, for twenty thousand dollars, six thousand dollars of which she paid down, and had a time for the balance, giving two notes of seven thousand dollars each, payable at six and twelve months, and afterwards sold the premises to the defendant, through the ministry of the register of wills, for twelve thousand dollars, payable six thousand dollars in cash, and the balance in two notes of three thousand dollars each, at six and nine months. After the adjudication, the defendant, the plaintiff’s mother, and her vendor, went before a notary, in whose presence the defendant paid to the plaintiff’s mother the said sum of six thousand dollars in Cash, and delivered her his two notes for three thousand dollars each, and shejmme-diately paid, in the presence of the notary and witnesses, the sum of seven thousand dollars, to her own vendor, who acknowledges to have therefore received ano-tber sum of seven thousand dollars, in discharge of the two notes of the plaintiff’s mo* *378ther, gave her a discharge of the balance due on the premises, and consented to the radiation of the special mortgage she had for t]ie payment of the balance.

The purchaser of mortgaged premises is not subrogated to the mortgagee’s right although he pay the price to the mortgagor who immediately and in his presence pays it over in discharge of the mortgage.

*378On these facts, the appellant’s counsel has contended, that it is apparent from the attendance of the vendor of the plaintiff’s mother before the notar/, the payment of six thousand dollars in cash, and the delivery of two notes for three thousand dollars, together with the immediate payment received by the plaintiff’s mother’s vendor, that the appellant gave his money to her for the purpose of her immediately paying her own vendor, which was accordingly done; and hence it has been urged, that the appellant, being the owner by the adjudication of the premises, had interest to discharge the mortgage which the former vendor had thereon, and the mortgage having been discharged out of his the appellant’s money, he is legally subrogated to the mortgagee, as effectually as if he had directly paid the money into the mortgagee’s hands.

The parish court thought differently, and * ° J' we think correctly. The appellant’s aim * 1 1 was to have the original vendor’s mortgage *379discharged, and the entry of it in the books of the register of mortgages erased, for by an act to which he was a party, the mortgagor discharged the mortgage, and con-seated to his mortgagor having the registry of it erased. The appellant’s money became eo instanti that he paid it, her imme-diale vendor’s money, and she tior he paid it in discharge of the mortgage.

it is imma. terial, whether the,. mortgagor use his money, or any other, to discharge the inert-sas^

Our attention has been called to two bills of exceptions to the opinion of the court, w ho refused evidence of the plaintiff's mother having discharged the mortgage, by the payment of the very money she received from- the appellant.

The other, to the admission on evidence (notwithstanding the appellant’s objection) of the record of the plaintiff’s suit against her mother.

The parish court, in our opinion, did not L * err. It was immaterial whether the appel-1 k lant’s vendor used the money he had just J J ' paid her, or any other money of her own, to pay her debts to her mortgagee.

The record of the suit against the plain-ther, is prima facie evidence oí the debt. Had the appellant pleaded collusion and *380fraud, and that nothing was due to the plaintiff*by her mother; this, as it-might not be directly proven, ami must have been met by evidence of an actual debt, might have thrown the burden of the proof on the r appellee, r r

Judgment against the tutor Is prima facie evidence against buthirffPcoiSn iTbe'denied that that the tutor was not charges-ble for any thing, evidence to the contrary must be produced by the minor.

^ ^ therefore ordered, adjudged and decreed, that the judgment of the parish court , m , • t be affirmed with costs.