Lacour v. Carrie

2 La. Ann. 790

• Court: Supreme Court of Louisiana
• Decided: September 15, 1847
• Status: Published

Opinion

The judgment of the court-was pronounced by

Slidell, J.

The plaintiff sues the defendant, administrator of the-success sioii of Sylvestre Anty, upon a note executed by the deceased". He asks to be placed on the tableau of debts due by the succession, as a privileged creditor upon the proceeds of certain real estate,- and as an ordinary creditor for the balance of his claim.

The first point presented for our consideration is, as to the Validity of the alleged mortgage. The mortgage recites an'indebtedness upon a note described as signed by Anty, dated 1st April, 1840; and bearing interest at ten per cent." The mortgage is entirely silent as to the amount of the note; At the trial’ of the cause the note was offered in evidence, and exhibited the paraph of the notary before whom the act of mortgage was executed ; and a subscribing witness to the act deposed that it was the identical note which was exhibited to the parties by the notary. The mortgage only was recorded; but the note was not.

“ The mortgage-only takes place in such instances as are authorised by law.” Civil Code, 3250. “ To render a conventional mortgage-valid, it is necessary that the exact sum- for which it is given shall be declared in- the act.” Ib. 3277. Under these articles, the neglect to state the sum is fata! as to third persons; and therefore the claim of preference over other creditors upon the-proceeds of the property described in the'act, was properly rejected.

We are also'of opinion" that the plea of prescription was properly overruled. The acknowledgment of the indebtedness by the deceased, within five" years Before the institution of the suit, and before prescription had accrued, is sufficiently proved. Judgment affirmed.