Lewis v. Boissier's Syndics

1 Mart. (N.S.) 495

• Court: Supreme Court of Louisiana
• Decided: August 15, 1823
• Status: Published

Opinion

Matthews,

* J.

delivered the opinion of the court. This case comes up on an appeal from an order or decree of the court below, by which the defendants, (here appellants,) were required to sell for cash a certain part of the insolvent’s property, on which the appellee held a mortgage. The legality and correctness of this decree is objected to, not so much on account of want of right and power in a mortgage creditor to insist on the immediate sale of the mortgaged property, in case of the insolvency of the mortgagor; as the manner of proceeding in such sale. They agree that it should be effected, in the mode prescribed by law under an execution. But we are of opinion that the disposal by sale of the estate ceded by an insolvent, under authority of his creditors, differs entirely from sales made by executions, or orders of seizure; and that in the former, the right of a mortgage creditor, to cause the mortgaged property to be sold, or so much thereof, as will be sufficient to make the amount due to him, with interest and costs, cannot be questioned, without embarrassment by appraisement, and the necessity of selling said property for two thirds of its value, &c. We, therefore, conclude that the decree of the district court is correct.

Brownson for the plaintiff, Baker for the defendants.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.

Porter, J. did not join in this opinion, being one of the creditors of the insolvent.