Cash v. Durand

9 La. Ann. 190

• Court: Supreme Court of Louisiana
• Decided: March 15, 1854
• Status: Published

Opinions

Yoorhies, J.

The plaintiff alleges, that she was the owner of two promissory notes drawn by the defendant to the order of and endorsed by John M. Durand, dated the 24th of November, 1846, one for the sum of $2047 33£, payable five years after date, and the other for the sum of $1751 33&, payable nine years after date, and both secured by mortgage on certain property situated in the parish of Jefferson ; that she was induced to surrender said notes to the defendant, on his representation that it was for the purpose of erasing the mortgage and selling the property, so as to enable him from its proceeds to give immediate assistance to his uncle, John M. Durand, who was embarrassed in his money affairs, and to reinstate him in business, and thereby enable him to pay her, and for which ho was to give her his joint obligation with his uncle ; that she surrendered said notes on or about the 17th of April, 1851, and received two joint notes from John Durand and John M, Durand, amounting in the aggregate to $4300, as collateral security, tha.t the former would fulfil his contract with the latter as soon as he should affect the sale of said property ; that in view of said agreement, on the 17th of June, 1831, John Durand conveyed to Isaac A. Smith by authentic act seven lots of ground and improvements thereon, &c., and on the 3d of July, 18S1, the latter conveyed the same property to James B. Durand, a young brother of the defendant; that the said defendant has sold, or otherwise disposed of, the remainder of the property described in the act of sale from Mrs. E. A. Durand to him, and on which a mortgage existed to secure the payment of said original notes; that having made a simulated sale of said property, first, to Isaac A. Smith and from the latter to his young brother, the defendant now refuses either to give the promised aid to his uncle, in order to enable him to pay her, or to give her the same or equal securities to those which he fraudulently obtained from her by false representations and promises; that the defendant has been guilty of a gross fraud in obtaining from her her good and legal securities by means of false promises and misrepresentations : and that the two sales of the 17th of June, 1851, and of the 8d of July, 1851, from the defendant to Isaac A. Smith and from the latter to James B. Durand, are false and simulated, and made with a view to defraud her of her legal rights as a mortgage creditor. She therefore prays that the defendant be cited, and also arrested to answer the charge of fraud; that he be condemned to pay her the sum of $3798 66|, amount of said mortgage notes, with 8 per cent, per annum interest from maturity, that on the charge of fraud he be dealt with according to law, and that the sales from the defendant to Isaac A. Smith and from the latter to James B. Durand be declared fraudulent, simulated and void. The defendant was accordingly arrested and held to bail. An exception to the plaintiff’s petition was filed by him and overruled. He then pleaded the general issue. .

The case was submitted to a jury, who found a verdict in favor of the defendant, and from the judgment thereon rendered, the plaintiff appealed.

The record shows that on the 24th of November, 1845, the wife of John M. Durand, authorized by him, sold to the defendant certain lots of ground and buildings thereon, &c., situated in the parish of Jefferson. As the price,, sundry promissory notes were given by the vendee, payable at different periods, and secured by the vendor’s privilege and mortgage. The vendor deposited in the hands of the plaintiff two of these notes, the same described in her petition, to secure the payment of a loan of $3000 which he had obtained from her, and for which she held his interest notes. Thus it appears that John ■ M. Durand, and not the defendant, was indebted to her, and that the notes in question were not held by her as owner, but as pledgee. But it may he asked, why were these notes taken out of the possession of the plaintiff and restored to the defendant? The defendant, it appears, on the 14th of April, 1851, retroceded to his vendor five of the lots of ground and buildings thereon, &c., which he had purchased from her on the 24th of November, 1845, and the restoration of the notes in question constituted a part of the consideration of that retrocession. The plaintiff admits in her petition that she received the two joint notes of the defendant and his uncle, amounting in the aggregate to $4300 ; and it is neither alleged nor proved by her that the defendant bound himself to give her any other security for the restoration of his notes. It is true that mortgage notes of Zebedec Doten, in favor of John M. Durand, which turned out to be worthless, were given to the plaintiff as good security in lieu of those of the defendant. But by whom were they given ? Not by the defendant, but by John If. Durand himself, the plaintiff’s debtor.

If any fraud or deception was practiced upon the plaintiff in relation to the Doten notes, such fraud or deception must be imputed, in our opinion, to John M. Durand, who was the real party in interest. The obliquity of conduct on the part of John M. Darand in the transaction which has given rise to this suit, may, we think, be fairly deduced from his own testimony given in the cause, his various acts, and particularly his affidavit for the arrest of the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs in both courts.