Fellows v. Jeter

10 La. Ann. 181

• Court: Supreme Court of Louisiana
• Decided: March 15, 1855
• Status: Published

Opinion

Voorhies, J.

This is an appeal from an order of seizure and sale. One of the grounds assigned, as error apparent on the face of the record, for the reversal of the order is, that the power of attorney from the vendee to John J. Jeter was not by authentic act. ,

Tinsley Jeter, represented by John J. Jeter, as his Attorney in fact, purchased of the plaintiff, also represented by au Attorney in fact, certain lots of ground situated in the city of New Orleans. The notarial deed of sale between the parties recited that John J. Jeter is the Agent and Attorney in fact of the vendee, by virtue of a procuration annexed to and made a part thereof. One of the promissory notes signed by John J. Jeter, as agent of Tinsley Jeter, given as a part of the price of the property thus conveyed, and duly identified by the Notary with the act of sale, and a copy of the conveyance, together with a copy of the power of attorney thereto annexed, constituted all the evidence on which the Judge a quo granted the order of seizure and sale. On the allegation that the defendant was a resident of Philadelphia, a curator ad hoc was appointed to represent him, at the instance of the plaintiff.

The power of attorney in question purports to have been signed by Tinsley Jeter in presence of two witnesses, and acknowledged before Wm. Henry Rawle, Commissioner, to take acknowledgments of deeds, &c., in the State of Pennsylvania, for the State of Louisiana..

The Act of the 24th of March, 1840, confers upon such Commissioner the power “to take the acknowledgment and proof of the execution of any instruments of writing for the sale, transfer or assignment of any property movable or immovable, rights and debts; and also any power of attorney to he used or proved in this State before any court of justice or public officer. It declares that “ every attestation or authentication made by such Commissioner, when . duly certified by him in the manner prescribed, &c., shall be good and available in law, and shall be received as proof as if taken or made before a competent officer of this State.” Having full authority under this Statute to receive such acts as authentic, we think the Notary in this instance very properly annexed the power of attorney to the act of sale as proof of the answer ; and being thus annexed, it follows that this authentic original, became a part of the archives of his office; and consequently certified copies therefrom under his official seal must be considered as authentic. The cases relied on by the defendant are clearly distinguishable from the present. In Tilden v. Dees, 1. R. 408, it appeared that the proces Hierbal of adjudication purported to have been signed by Gray as the attorney in fact of Tilden, and no power of attorney had been exhibited either to the Probate Judge who made the sale, or to the District Judge who had issued the order of seizure and sale. In the Commercial Bank v. Routh, 7 A. 128, the act was executed before a Notary in Concordia, and the original taken by the parties and deposited in the office of another Notary, whose certified copy was offered in evidence and rejected; it was held, under the textual provisions of the Civil Code, art. 2247, that copies not certified by the Notary before whom the acts were passed, or by a power who was the legal custodian of them, or authorized by law to give copies were inadmissable in evidence.

It is unnecessary to notice the other ground of error assigned as it has not been insisted upon in the oral argument of the defendant’s counsel, and is besides clearty untenable.

It is, therefore, ordered and decreed that the judgment or order of seizure and sale granted in this case be affirmed with costs in both courts.