No. 7223 | La. | May 15, 1880
The opinion of the Court was delivered by
The plaintiffs, Summers & Brannin, having a judgment against James S. Clarke, seized under a ft. fa. certain real estate in the city of New Orleans. A mortgage in favor of Albert Baldwin appeared inscribed on this property, to secure the sum of §20,000, and interest on that sum. On motion of plaintiffs a rule was taken in the Sixth District Court, parish of Orleans, ordering the Recorder of Mortgages of New Orleans, and said Albert Baldwin, to show cause why said mortgage should not be canceled and erased, and declared null and void. The exception was filed by Baldwin, claiming lis pendens in the United States Court, between same parties, on a petition to annul this mortgage; and this exception was overruled. Baldwin then pleaded that he had proceeded in the Fifth District Court and obtained a judgment therein, which he held to be a bar to the rule to set aside the mortgage. This-exception was also overruled, and various exceptions being pretermitted to the merits, the rule was tried on the issue of simulation vel non. Plaintiffs’ rule was dismissed, and they have appealed.
On a careful examination of all the evidence contained in the record, and attributing to it all the weight and consideration to which it can reasonably be entitled, giving to the circumstances connected with the transaction, directly or remotely, and the hypotheses based thereon, patient discussion and a fair construction, we can perceive no sufficient .grounds to sustain the charge that the mortgage which the plaintiffs seek to have erased is tainted with simulation or was given in fraud of these creditors of Clarke.
Wo concur in the proposition set forth in the brief of counsel for '¿lie appellant, that “ simulation is difficult of conclusive or affirmative proofyet it surely requires that the circumstances relied upon should 'be so strong as to create highly reasonable doubts and suspicions as to the good faith and honesty of the trahsaction which is sought to be set aside. The presumptions in favor of the legality and validity of a transaction such as the one now under consideration may be rebutted, and in some instances the burden of proof may bo shifted, in order that suspicious and unusual circumstances shall be accounted for or explained away.
The principal facts or circumstances on which appellants rely to •establish simulation in the mortgage of Clarke to Baldwin, are: The non-payment (as they allege) of the money to secure the payment of which the mortgage was given at the time of the execution of the act; the execution of a simulated act by Clarke, in favor of another party at an antecedent date ; the renewal or extension of “ loans and mortgages” ■on his own city property by Mr. Baldwin, at a similar rate of interest, at the same time that he was making the loan to Clarke ; the insufficiency •of the mortgaged property as a security for the amount loaned.
While the notary and his clerk before whom the act of mortgage was passed testify that they did not see the money paid or handed to Olarke by Mr. Baldwin, on the other hand, Mr. Baldwin testifies that he did pay the money, and describes the mode, manner, and time of handing In to Olarke, and the kind of money, with as much particularity of details •as could reasonably be expected, in view of the length of time between the payment and his examination. Because the notary and his clerk did not see the money paid over, cannot be held as proof that it was not paid, when Mr. Baldwin swears positively that he did pay it. No attempt to invalidate the testimony of Mr. Baldwin, or to prove him unworthy •of belief, was made, and we therefore hold it as unimpeached in this matter on this point. It would be unjust, unfair, and illogical to infer
We are to consider the attributes of the distinct act which is assailed* and it must be judged independently of other matters and occurrences* especially when.it is between different parties.
As to the fact that about the time Mr. Baldwin was lending this large amount of money to Mr. Clarke he was obtaining an extension of his own indebtedness, for a much smaller amount, at .about the same-rate of interest, is satisfactorily explained by Mr. Baldwin himself, and1 does not justify any grave suspicions or serious doubts as to the-good ■ faith and honesty of the negotiation with Clarke. So, also, the alleged insufficiency of the mortgaged property as a security for the-amount loaned is in the first place not established by the evidence. On the contrary, we think it rather estimates the property as being of a. value equal to if not greater than the loan ; but hi addition to the property, the pecuniary circumstances or condition of Clarke evidently-operated upon the lender’s mind, and in his opinion rendered his investment safe.
The judgment of the lower court is affirmed at the costs of appellant.