Laspopoulos v. Earl

376 So. 2d 965, 1979 La. App. LEXIS 2873

Opinions

REDMANN, Judge.

A mortgagee of an immovable appeals from a preliminary injunction against executory process. The mortgagee testified that he had not yet given the mortgagor husband the loan at the time the act of mortgage was passed in the notary’s office but did give it to him at the mortgagee’s office later that day, after the mortgagor wife left. Thus the mortgagee concedes that the act is wrong. The result is that the mortgagors’ parol evidence is admissible and the contest is one of credibility. That parol evidence, including that of a witness to the act and to the previous arrangement between the parties, indicates that the mortgage was always a sham to forestall the mortgagors’ creditors, and that the mortgagors got no money, did not appear at the same time to execute the act, and did not issue the mortgage note (it was to be retained by the notary).

The mortgagee’s sound legal position that parol is inadmissible to disprove the essential recitals of a written contract, C.C. 2238, is not dispositive because the mortgagee himself testified, without objecting to being asked the question, that the written contract was wrong in its recital that he had loaned defendants money.

Affirmed.

Before REDMANN, GULOTTA and STOULIG, JJ.