Phillips v. McCollom

4 Rob. 107

• Court: Supreme Court of Louisiana
• Decided: February 15, 1843
• Status: Published

Opinion

Garland, J.

This is an action by the holder against the maker and endorser of a promissory note. The former only is before us. He alleges that the note was given to secure the payment of part of the price of a tract of land near the mouth of Red River, and of several slaves, cattle, &c.; and avers that the plaintiff had no title to the land, and could not convey any; wherefore there was a failure of consideration. The plaintiff had a judgment below, and the defendant McCollom has appealed.

Previous to the trial, the defendant McCollom interrogated the plaintiff as to the consideration of the note, who answered, among many other things, that this note was given in renewal of one that had been executed to secure the price of the slaves and cattle, which were sold separately from the land, and at a different time. This answer is not contradicted, except by one witness, and settles the case, as the title to the slaves and cattle is not controverted or denied. All the testimony of the witnesses, except one, seems to relate to the notes given to secure the price of the land.

M. Taylor, for the plaintiff. llsley & Nicholls, for the appellant.

It is not shown that the defendant, McCollom, or his partners, have ever been disturbed in the possession of the land or slaves; nor have they ever offered to return them to the plaintiff. There is no equity in holding on to the property, and refusing to pay the notes.

Judgment affirmed.