Poydras v. Hiriart

Supreme Court of Louisiana

Poydras v. Hiriart

6 Mart. (N.S.) 403

DecidedJanuary 15, 1828

StatusPublished

This text of 6 Mart. (N.S.) 403 (Poydras v. Hiriart) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Poydras v. Hiriart, 6 Mart. (N.S.) 403 (La. 1828).

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Opinion

Matthews, J.

delivered the opinion of the ' court. This is an hypothecary action in which the plaintiff prays for an order of seizure and sale of a certain slave described in his petition, , , , , . . , ,, i on which he claims a right of mortgage, . , , , seeks to enforce it on the property in the hands of the defendant, a third possessor. The court below gave judgment of non-suit against the plaintiff, from which he appealed. -

The proceedings in the case were commenced under the government of the late civil code, and have been conducted in reference to the rulés therein prescribed, in relation to actions ofthis kind. According to these rules, a plain[404]*404tiff who desires to have mortgaged property ' o n I- r J* seized in the hands, of a third possessor, must j 1C c ,1 C produce a copy in due torm oí the act of mortgage, and a judgment against the principal debtor. Old code, 469, art, 43.

In the present suit, the plaintiff produces a record of the proceedings and judgment, by him obtained against the principal debtor; and among these proceedings is found a copy of the instrument of mortgage as transcribed by the clerk of the court below, in which said proceedings were carried on. This is clearly not a copy in due form as required by the code. It is only the copy of a copy, and consequently not directly certified by the officer entrusted to keep the registry of mortgages.

But to supply this defect, the counsel for the appellant insists on the intervention of the present defendant, in the suit commenced and carried on against the principal debtor. The object and the sole object of that intervention as shewn by the record of the proceeding which took place in that case, was to obtain relief by the intervening party against a sequestration, by virtue of which his slave had been seized. We believe it to be a circumstance which does not change his situation from that of ordinary [405]*405third possessors of mortgaged property. The plaintiff failed to make out his ease, by not . . „ , . . „ producing a copy of the mortgage m due form, and the judge a quo acted eorrecdy in non-suiting him.

CuvilUer for the plaintiff, Eustis for the defendant.

It is therefore ordered, &e. that the judgment of the district court be affirmed with costs.

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Matthews, J.

delivered the opinion of the ' court. This is an hypothecary action in which the plaintiff prays for an order of seizure and sale of a certain slave described in his petition, , , , , . . , ,, i on which he claims a right of mortgage, . , , , seeks to enforce it on the property in the hands of the defendant, a third possessor. The court below gave judgment of non-suit against the plaintiff, from which he appealed. -

The proceedings in the case were commenced under the government of the late civil code, and have been conducted in reference to the rulés therein prescribed, in relation to actions ofthis kind. According to these rules, a plain[404]*404tiff who desires to have mortgaged property ' o n I- r J* seized in the hands, of a third possessor, must j 1C c ,1 C produce a copy in due torm oí the act of mortgage, and a judgment against the principal debtor. Old code, 469, art, 43.

In the present suit, the plaintiff produces a record of the proceedings and judgment, by him obtained against the principal debtor; and among these proceedings is found a copy of the instrument of mortgage as transcribed by the clerk of the court below, in which said proceedings were carried on. This is clearly not a copy in due form as required by the code. It is only the copy of a copy, and consequently not directly certified by the officer entrusted to keep the registry of mortgages.

But to supply this defect, the counsel for the appellant insists on the intervention of the present defendant, in the suit commenced and carried on against the principal debtor. The object and the sole object of that intervention as shewn by the record of the proceeding which took place in that case, was to obtain relief by the intervening party against a sequestration, by virtue of which his slave had been seized. We believe it to be a circumstance which does not change his situation from that of ordinary [405]*405third possessors of mortgaged property. The plaintiff failed to make out his ease, by not . . „ , . . „ producing a copy of the mortgage m due form, and the judge a quo acted eorrecdy in non-suiting him.

CuvilUer for the plaintiff, Eustis for the defendant.

It is therefore ordered, &e. that the judgment of the district court be affirmed with costs.

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