2 La. Ann. 885 | La. | 1847
The judgment of the court was pronounced by
The plaintiff obtained a judgment against Crain., for $996, with ten per cent iuterest from the 28th of December, 1839. The indebtedness of Crain arose from his interference in the administration of the plaintiff’s property while -the latter was a minor, without having been appointed his tutor or curator. The judgment recognised a tacit mortgage on the property of Crain, resulting from his nets of unauthorised administration, to take effect from the date of the illegal interference. The object of the present suit is to enforce that judgment upon property of the defendant, Luckett, which it is alleged was subject to the tacit encumbrance in the hands of Crain, its former owner. A judgment was rendered in favor of the plaintiff, from which the defendant has appealed.
Several bills of exception were taken on the trial below, to opinions of the judge admitting the testimony of witnesses to prove Crain’s acts of unauthorised interference, and to connect the plaintiff’s claim with those acts. It does not become important to enquire whether those objections be well founded or not, as, in-our opinion, the plaintiff has sufficiently established his right by other evidence. The actiou is based on the judgment obtained against Crain. That judgment is in evidence. There is no allegation that it was obtained by fraud or collusion, and, while it remained unquestioned, it formed such prima facie evidence that the sum claimed was due, and that it was secured by a tacit mortgage on the property of Crain, as dispensed the plaintiff from the production of other testimony. 17 La. 205. 4 Rob. 335.
It is shown that the property of the defendant, on which the judgment is sought to be enforced, formerly belonged to Crain, and that, while he was the owner, the tacit mortgage resulting from his acts of illegal administration attached. C. C. 3283. 8 Mart. N. S. 367.
The defend ant,as third possessor, can only be made answerable for five percent interest, which is the highest rate that the plaintiff could have claimed from Crain, in the absence of an express agreement. In this respect the judgment must be corrected.
It is therefore ordered that so much of the judgment of the court below as decrees that the defendant pay ten por cent interest on the amount thereof, b© .
