10 La. Ann. 158 | La. | 1855
The plaintiffs are transferees of a note given by the defendant to John L. Willson, for the purchase of a tract of land in the parish of Carroll, upon which the vendor retained his privilege and a special mortgage.
The note is not negotiable in its form, and was transferred to the plaintiffs long after maturity. Moreover, the notarial act of transfer, as well as the note itself, gave them notice of its consideration and of the equities now pleaded by the defendants. They, therefore, stand in no better position than Williams himself would, were he the party plaintiff.
The note is, on its face, a conditional obligation :
“ Pbovidekce, Nov. 11, 184G.
“ Twelve months after date,-1 promise to pay to JohnB. Willson, the sum of $1*450, for value received, with eight per. cent, per annum interest from maturity until paid, subject to the stipulations in the deed of even date with this note, for the purchase of lot of land No.'16, township No. 20, of range No. 13 east.
“ (Signed,) W. M. Benton.”
Referring to the deed identified with the.note, we find the following clauses i ■“The said Willson hereby warrants and defends unto the. said Benton. a good and valid title to the said land against the claims of all persons whatsoever; and stipulates to have removed all and every incumbrance that may now exist thereon, and to deliver to the said Benton a patent which the said Willson says has issued from the United States to D. O. Bwi'ton, B. Hempkin, or himself, or to have the same patent recorded in'the office of the recorder of mortgages for this parish, within twelve ■ months from this dale; and that the mortgage retained on said lot for the payment of the note given by the said Willson with Thomas B. Patten, security, for the purchase of said lot of land at the probate sale of the succession of D. 0. Barton, shall be erased and discharged by said Willson, within twelve months from this time; that if the said patent shall not be produced and the said mortgage erased and discharged at the end of t-welve months, and all other incumbrances removed from the said lot of land, then the note executed is not to bear interest from the maturity thereof, but only from the time said stipulations are complied with.”
The evidence leads us to the conclusion, that' neither has been done, and the suit was therefore prematurely brought. None of the mortgages alluded to appear to have been erased. No patent appears to have been issued either to Barton, Hempldn or Willson. In 1851, the land was patented to Zephariah Liles and Jane Garríale, persons who are not shown to have any priority with the vendor, and whoso title must therefore be presumed to be adverse to his.
The plaintiffs have made no attempt to explain these facts, or to excuse Willson or themselves for not complying with the stipulations of his deed. They rely upon a nice verbal construction of this instrument, and seek to restrict the effect of the vendor’s stipulations to the question of interest alone.
As we think they had a deeper meaning than that, the judgment must be reversed, and the plaintiff’s petition dismissed as in case of non-suit, with costs in both courts.
