Joseph V. Bacon & Son v. Maskell

8 La. Ann. 507

• Court: Supreme Court of Louisiana
• Decided: September 15, 1852
• Status: Published

Opinion

Rost, J.

This is an appeal from an order of seizure and sale; the appellant seeks to have it set aside on two grounds.

1st. That the transfer of the note sued upon, from the original payee to the plaintiffs, although made by authentic act, is insufficient; because the plaintiffs were not parties to it, and their acceptance of it is not shown,

2d. That by the act of sale, out of which the note originated, the vendor bound himself to raise certain mortgages existing on the property sold, within a reasonable time; that the note was transferred to the plaintiffs, after its maturity and after a reasonable time had elapsed; and no recovery can be had upon it by them, unless they show that those mortgages have been raised.

Wo think the transfer and the possession of the notes by the plaintiffs sufficient to authorize the order of seizure—but the other ground appears to us well taken. Near eighteen months had elapsed since the sale when the order issued, and the payment of the note could not have been enforced, even in an ordinary suit, unless the plaintiff had shown that the mortgages, which the vendor had assumed to raise, had been satisfied and erased from the books of the recorder; the same showing is indispensable in this proceeding, and unless it can be made by authentic acts, the plaintiff must resort to an ordinary suit.

It is ordered that the order of seizure and sale appealed from be set aside, and that the costs in both Courts, since the filing of the petition, be paid by the appellee.