Bernard v. Scott

12 La. Ann. 489

• Court: Supreme Court of Louisiana
• Decided: June 15, 1857
• Status: Published

Opinions

Merricic, O. J.

This is an action of partition. The plaintiff claims title to one-fourth of a tract of land situated in the parish of East Baton Rouge, by mesne conveyance from Thomas J. Sedtt, who was the owner of one-fourth in common with his three brothers, William S Seott, John Scott and Samuel Seott. Thomas J. Scott has intervened in the suit, denying plaintiff’s title and praying that his demand be rejected. Thd defendants answer by a general denial. The court having maintained the plaintiff’s title, they have appealed.

The only question raised in the case is one of construction of a deed from Thomas J. Scott to one Ruderstein. The plaintiff contends that it is a sale under a condition which has become absolute — the defendant that it is a mortgage.

The instrument itself is executed by Seott alone, and acknowledged before a Justice of the Peace of Warren county and State of Mississippi. It purports to be executed on the 22d day of May, 1841, between Thomas J. Scott, of the city of Vicksburg, Mississippi, on the one part, and John G. Ruderstein, of the city of Cincinnati, of the State of Ohio, of the other part.

The consideration specified is the nominal sum of $6000. The property conveyed consisted of certain property in and adjoining Vicksburg, and property in Louisiana. The instrument commencing at the habendum, is as follows: “To have and to hold the aforesaid tract and lots of land unto him, the said John G. Ruderstein and his heirs, executors and assigns forever, and the said Thomas J. Scott warrants and defends the title of the aforesaid lots or parcels of land with all appurtenances, against the claims of all persons whatsoever. But with this reserve, that the said John G. Ruderstein holds two bills of exchange, one for $3162 79, drawn by said Ruderstein in favor of J. G. Bull, dated March 12th, 1840, and payable 90 days after date, the other for $3000, same date and payable 60 days after date, drawn 'by same in favor of same, both of which bills are indorsed by said Bull, and accepted by said Thomas J. Scott. Now, if the said Thomas J. Scott shall well and truly pay or cause to be pajd to the said Ruderstein the aipount of said two bills of exchange, then the above conveyance to be null and void, otherwise to remain in full force and virtue.”

This instrument must be considered as having’ but a single aspect. It was intended either as a conditional sale or as a common law mortgage to secure the payment of Thomas J. Scott’s acceptances. For it is not reasonable to suppose that the parties contemplated a mortgage as to the property situated in Mississippi, and a sale as to the property in Louisiana; that the debt should be wholly or partially paid by the foreclosure of the mortgage and the sale of the property in Mississippi, and that there should also be a forfeiture of the property in Louisiana by the non-payment of the whole pri^e. As the parties to the instrument were both resident in States whore the common law prevails, as the instrument was executed in a common law State and in the form adopted to create a mortgage there, and as a part of the property subject to the action of the instrument was situated in the State of Mississippi, there can be no question that the original parties to the act, the grantor and grantee, intended to create a mortgago to secure the payment of a sum of money. 2 Blaclcstone Com., 158, 159 ; Burrill’s Law Die. Equity of Redemption ; 4 Kent Com., 159. As between themselves, therefore, there is no doubt what effect ought to be given to the instrument.

But was Ruder stein’s vendee, Shalor, a resident of Louisiana, bound to know the law of Mississippi and what construction ought to be put upon the instrument as between the parties ? The power of attorney under which Ooolc acted for Ruderstein expressly refers to his title from Thomas J. Scott, and empowers the attorney in fact to sell all his right, title and interest in and to the property in controversy, “ the same conveyed to him by Thomas J. Scott, by deed dated Vicksburg, on ---of-1841, the particular description of which will appear by reference to said deed, on record in the office of the Parish Judge of said parish,” East Baton Rouge.

The purchaser was, therefore, fully informed of the title under which Ruder-stein held, and as it covered property both in the States of Mississippi and Louisiana, he was bound to inquire what effect the law would give to the same. Similar instruments have been held to be mortgages of property situated in a common law State and afterwards removed here. See Smoot v. Russell, 1 N. S. 522. In the case of Hayden v. Nutt, 4 An. 71, the court recognized an instrument similar in form, executed in the State of Mississippi, and operating on. the undivided interest of tho grantor in a tract of land situated in Louisiana as a mortgage. We think the instrument relied on as the basis of the plaintiff’s title can have no greater effect.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment against the demand of the plaintiff and in favor of the defendants, and that the plaintiff pay the costs of both courts.