Pain v. Plicque

10 La. 304

• Court: Supreme Court of Louisiana
• Decided: September 15, 1836
• Status: Published

Opinion

Martin, J.

delivered the opinion of the court.

The defendants are appellants from a judgment which perpetuates an injunction procured by the plaintiff, staying all the proceedings on an order of seizure and sale obtained by them, against a certain plantation and slaves mortgaged to them by the plaintiff’s husband.

Her pretensions are resisted, on the ground, that she intervened in the act of mortgage, and duly renounced any claim she might have on'said property, for the security of her dotal and paraphernal rights and effects.

The notary before whom the act of mortgage was passed, has been examined, and deposes, that the plaintiff signed the act of mortgage at the counting house of the defendants, out of the presence of any witnesses, in a dark room, with the doors shut and candles lighted.

A notarial act, ’which is not signed by the party to it in the presence of the subscribing -witnesses, making a renunciation of certain rights and mortgages, is not authentic, and will not bind the party thus signing it. An instrument offered as a notarial or authentic act, which proves to be incomplete as such, cannot be received as a private act between the parties, when the original is not produced. The notary who fails to receive and pass a public act, according to the provisions and formalities of law, is guilty of misconduct in office.

The record shows the plaintiff’s claim against her husband and her legal mortgage on the premises, according to the allegations in the petition.

It is clear, that the renunciation which is opposed to the plaintiff is not legally established. The act which is said to contain it is not authentic, because her renunciation in said act was not received in the presence of two witnesses. We have not examined whether this act may be opposed to her as an act sous seing privé, because it was not urged; and the District Court could not have acted on such an instrument without the production of the original; and the absence of a bill of exceptions cannot be imputed to her, as the copy presented to the court purported to be that of a notarial act.

The flagitious candor with which the notary has admitted that he attested a fact which he knew to be false, is well calculated to give rise to very painful sensations. The people will feel alarmed, uneasy and insecure when they receive so irrefragable a proof of such misbehavior, in an 'officer entrusted to receive and preserve the muniments of their titles.

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

Note. — The following clause in the foregoing opinion of the court, was stricken out before it was read ; the judges being unable at the time to turn to the legislative enactment concerning notaries referred to.

“The dereliction of duty evinced in this officer, would have induced the court to exercise the power apparently vested in it by the legislative act of- -- and speedily to remove him from office, had we not been satisfied, that the legislature in passing the act, required of us the exercise of original jurisdiction, while the constitution has expressly said, our jurisdiction is appellate only.”

The act referred to was passed the 20th March, 1813, and provides, that notaries public “ may be suspended by the Supreme Court until the next meeting of the legislature, whenever, after a summary inquiry before said court, it shall appear that there exists just cause of reproach against their conduct.” 1 Moreau's Digest, page 18.