New Orleans Mutual Insurance v. Bagley

70 La. Ann. 89

• Court: Supreme Court of Louisiana
• Decided: March 15, 1867
• Docket: No. 1240
• Status: Published

Opinion

Howell, J.

The only question presented in this appeal is, whether the clause in the act of mortgage, dispensing with the appraisement of the property mortgaged, is valid in law ?

This point was presented in the case of Broadwell v. Rodriguez, reported in 18 An. p. 68, and after full discussion by counsel, and mature deliberation by the Court, it was held that such a clause was legal and valid; and we find nothing in the circumstances of this ease, or the able argument of counsel, to cause us to change our opinion, or relieve the case from the application of the principle there enunciated.

If the contract was legal at its execution, the subsequent change in the solvent condition of the obligor cannot impair its legality, and the fact ■that the Legislature, in March, 1866, enacted that property should bring its full appraisement, does not affect the principle on which tho above decision was based. We may, indeed, presume that the Legislature, in the adoption of said statute, subsequent to the decision in Broadwell v. Rodriguez, recognized the construction placed upon the nature of such laws by this Court, as the right to make a waiver of appraisement was not prohibited.

It is therefore ordered, that the decree of the lower Court, ordering the mortgaged premises to be sold with appraisement, be reversed ; and it is now ordered, that the said property be sold without appraisement, and in other respects, the judgment appealed from be undisturbed ; defendant to pay costs in both courts.