Terrill v. Gamblin

10 La. Ann. 623

• Court: Supreme Court of Louisiana
• Decided: July 15, 1855
• Status: Published

Opinion

Voorhies, J.

(Spoitord, J., recused himself.)

The facts of this case, as exhibited by the record, appear to be correctly set forth in the opinion of the Judge aguo.

We regret our inability to concur with our learned brother of the District Court in the view which he has taken as to the applicability of the law on which his opinion is based to the state of facts thus presented.

It appears clear to us that the transfer or assignment of GambUn's note by the estate of Nicholson in payment of its liability to the estate of Sheldon, cannot, in any point of view, be considered as an extinguishment of the note due by Gamblin. Admitting for the sake of argument that the administrator had no legal authority to make the transfer, then it is obvious the succession of Nicholson would not bo affected by it, and the position of Gamblin, the maker of the note, remains unchanged. Hence we are unable to perceive how the defendant’s position can he affected, whether the transferree, or the estate of Nicholson be considered the legal owner of the debt. We think the transfer should be considered as a donation in paiement, which our code defines to be “ an act by which the debtor gives a thing to the creditor, who is willing to receive it, in payment of a sum which is due.” Art. 2625. Was the debt due the estate of Sheldon, by the estate of Nicholson, extinguished ? If so, how was it extinguished ? Surely not by payment. Then it must have been by novation. One of the ways in which novation takes place under our code, is, “ when by the effect of a new engagement, a new creditor is substituted to the old one, with regard to whom the debtor is discharged.” Art. 2185. Applying this rule to the parties before the court, it follows that Sheldon's estate must be considered as substituted to Nicholson's estate as a new creditor, and Oamblin its debtor. The plaintiff being considered transferree, it is clear, under these circumstances, that the sale or transfer of the debt included everything which was an accessory to it, such as suretyship, privileges and mortgages. Art. 2615.

In relation to the transfer from the estate of Nicholson under whom the plaintiff claims to hold, it is perfectly clear that the defendant is without any interest to contest it. 5 R. R., 275.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; that the plaintiff recover of Thomas Oamblin the sum of six hundred and fifty-nine dollars and fifty-nine cents, with interest thereon at the rate of eight per cent, per annum from the 2d of June, 1849, until paid, and to secure the payment thereof that the plaintiff’s mortgage on the property described in his petition, be recognized; that on the failure of the payment of this judgment ten days after the same shall have been notified to the defendant, B. A. Nott, then execution shall issue and the property described in the plantiff’s petition, seized and sold to satisfy said judgment, with interest and costs; and it is further decreed that the defendants and appellees pay the costs of both courts.