Kaplan v. University Lake Corp.

369 So. 2d 1107, 1979 La. App. LEXIS 3802
CourtLouisiana Court of Appeal
DecidedMarch 5, 1979
DocketNo. 12511
StatusPublished
Cited by3 cases

This text of 369 So. 2d 1107 (Kaplan v. University Lake Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kaplan v. University Lake Corp., 369 So. 2d 1107, 1979 La. App. LEXIS 3802 (La. Ct. App. 1979).

Opinion

SARTAIN, Judge.

This appeal arises from the judgment of the trial court rendered adverse to appellant, Guaranty Savings Assurance Company. The other two defendants, University Lake Corporation, a domestic corporation, and International Speedways, Inc., a North Carolina corporation, against whom judgment by default was confirmed, have not appealed. The judgments rendered against the two latter named parties are now definitive.

Our perusal of the record, the authorities relied on by the trial court and its reasons for judgment convinces us that the judgment appealed is correct, and accordingly, the judgment is affirmed.

We adopt as our own the well reasoned written opinion of the trial judge and quote it in full, as follows:

“This is an action to enforce a mortgage by ordinary process.
“The plaintiff is the executor of the Succession of Seymour Weiss.
“The defendants are three corporations, namely:
(1) University Lake Corporation (Lake), a Louisiana business corporation which entered into a loan transaction with the American Bank and Trust Company of Baton Rouge on October 22, 1963. The loan in question was secured by a collateral mortgage on property described in detail in P-1.
(2) International Speedways, Inc. (Speedways), a North Carolina business corporation which acquired ownership of said property burdened with said collateral mortgage on December 29, 1970, from Lake’s successor in title.
(3) Guaranty Savings Assurance Company (GSA), a Louisiana business corporation which acquired the property from Speedways on June 15, 1971, ‘assuming, binding, and obligating itself, its successors and assigns to pay all mortgages, judgments, and valid liens now extant against the property-’
“Plaintiff seeks a money judgment against all three corporate defendants, in solido, for $132,000.00 plus 6% interest, subject to credits for interest payments made, plus 10% attorney’s fees. Plaintiff also asks that the mortgage be recognized and maintained against the property.
[1110]*1110“Service of process was made on Lake’s designated agent, P. D. V. de LaBarre on November 25, 1974. Lake filed an answer on December 10, 1974, appearing through ‘M. R. Fletcher, President in Proper Person.’ Lake was not represented in the case; its address is not known to the court, and no further appearance has been made on its behalf.
“Speedways was served under the Long Arm Statute. It made no appearance and a preliminary default was entered against it. The evidence on trial was offered by plaintiff in confirmation of said default. Under the Long Arm Statute, any judgment against Speedways will be ‘in rem.’
“The principal dispute is between the plaintiff and GSA, the present record owner of said property.
“PACTS
“Lake owned a 15.19-acre tract of land in East Baton Rouge Parish and wanted to develop it into a residential subdivision. Its plan of development called for eighteen equal-sized lots fronting on a single street and backing up to two man-made lakes. It applied on September 26, 1963, to the American Bank for a loan of $144,000.00, representing that it owned eighteen lots in Twin Lake Subdivision and had a contract for construction of all of the offsite improvements, including streets, lakes, water and sewerage system.
“The loan was consummated on October 22, 1963. Pursuant thereto, a $144,000.00 ‘hand note’ was executed with Lake as Maker. The hand note was secured by the pledge of a $144,000.00 note which was par-aphed ‘Ne Varietur’ with an act of collateral mortgage on said tract (P-1).
“A ‘Pledge of Proceeds of Contracts’ was also executed covering the eighteen contracts to purchase the lots of the proposed Twin Lake Subdivision. The parties disagree as to which of the two notes, the hand note or the ‘Ne Varietur’ note, was meant to be secured by this act of pledge.
“American Bank advanced Lake a total of $132,000.00. The original plan of development fell through and was replaced by an apartment complex plan. Lake defaulted on its obligation under the loan. The bank began to call on lake for payment and made its final demand on April 11, 1966. On June 24, 1966, American Bank sold the obligation represented by the hand note and all its accompanying security devices to Seymour Weiss for $133,848.00.
“After several conveyances to and from various parties, Speedways acquired the 15.-19-acre tract on December 29, 1970, from Town House Trace, Inc. In this transaction Speedways assumed all mortgages ‘extant’ against the property at that time.
“On June 15, 1971, GSA acquired the property from Speedways and assumed ‘all mortgages . . now extant against the property.’
“Suit was filed herein on November 15, 1974, for the $132,000.00 advanced under the hand note and for recognition of the mortgage.
“LAW
“GUARANTY SAVINGS ASSURANCE COMPANY
“I. GSA contends that when it assumed all mortgages extant against the property, it did not ‘acknowledge, assume, or agree to pay any debts, loans or obligations of others.’ In other words, it only assumed the mortgages, not the underlying debts and therefore cannot be liable to the plaintiff on the notes.
“The argument fails for two reasons:

“First, it is evident that in using the word ‘mortgages’ in the act of sale, the parties intended that which is the ‘common and usual significance’ of the term, which was that GSA assumed the total obligation against the property, its debts and security. The words of a contract are to be interpreted according to their ‘common and usual signification’ and in an effort to ‘ascertain the common intention of the parties.’ Civil Code Articles 1946 and 1950. Only by the most strained interpretation could GSA be said to have assumed the security but not the debt.

[1111]*1111“Second, the jurisprudence indicates that a person who assumes a mortgage becomes personally obligated and a co-debtor on the obligation secured by the mortgage. Simon v. McMeel, [167 La. 243,] 119 So. 35 (La.1928), was a suit for the balance due on a promissory note, with interest and attorney fees, and for the recognition and enforcement of the mortgage by which the note was secured. The defendant had bought the property burdened by the mortgage and as part of the purchase price, ‘assumed and obligated herself to pay all mortgages and encumbrances bearing upon the property.’ The court said that, ‘in assuming and binding herself to pay these obligations, the defendant became a codebt- or thereon with the original obligor.’ Federal Land Bank of New Orleans v. Cash, [Cook] et al., [179 La. 857,] 155 So. 249 (La.1934), was a suit to enforce a mortgage against the successors in title of the original mortgagor.

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Related

Southern Sav. Ass'n v. Lorac, Inc.
490 So. 2d 1104 (Louisiana Court of Appeal, 1986)
Kavanaugh v. Berkett
387 So. 2d 1270 (Louisiana Court of Appeal, 1980)
Kaplan v. University Lake Corp.
371 So. 2d 617 (Supreme Court of Louisiana, 1979)

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Bluebook (online)
369 So. 2d 1107, 1979 La. App. LEXIS 3802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaplan-v-university-lake-corp-lactapp-1979.