Union Bank v. Smith

10 Rob. 49

Opinion

Simon, J.

This action is prosecuted by the Union Bank of Louisiana, for the immediate recovery of the amount of two promissory notes, which, with eight other notes, executed by the same parties, are secured by a special mortgage on certain property described in the petition. The notes sued on were duly protested at maturity; but the other eight notes, not being due at the time of the institution of this suit, the plaintiffs pray that the property mortgaged may be decreed to be sold for cash, to pay the sum due and costs, and on a credit to meet the other eight notes described in the act of mortgage.

The defendants pleaded the general issue, and denied specially the demand alleged, as also the protest and notice of protest. Judgment was rendered below against the defendants in solido for the amount sued for, ordering the property mortgaged to be seized and sold to satisfy the same.

* From this judgment the Bank has appealed.

The appellants complain that the judgment appealed from is erroneous, in this: that it should have decreed the mortgaged property to be sold to pay all the notes described in the act of mortgage, on terms of credit corresponding with the periods of maturity of the eight notes not due, respectively.

We think the right claimed by the appellants was improperly denied to them, and that judgment ought to have been rendered below according to the prayer of their petition. In the case of Pepper et al. v. Dunlap, 16 La. 164, in which a very similar question was presented for our solution, we held, after the most mature consideration, that “ when a seizing creditor only sues for such instalments of a debt, secured by privilege or special mortgage, as are due, the property so mortgaged is to be sold for the whole of the debt, on such terms of credit as are granted by the original contract, although such creditor does not show that the subsequent instalments belong to him, or that he is the holder of all the notes mentioned in the contract of mortgage ; and that it suffices that the several instalments not due, be mentioned in the petition.” This is in accordance with art. 686 of the Code of Practice, which gives to the seizing creditor who has a privilege, or special mortgage on the property seized, the right of demanding that the property be sold for the whole of the debt, provided it be on such terms of credit as are stipulated in the original contract; and, as we have no reason to be dissatisfied with our previous opinion, we must come to the conclusion that the plaintiffs had a right to require the property mortgaged to be sold, not only to satisfy for cash the amount of the note sued on, but also on such terms of credit as to meet the payment of the other eight notes as they shall become due hereafter respectively ; and, in this respect, the judgment appealed from must be amended.

As the appellees have not in any respect prayed for the amendment of the judgment complained of by the appellants, we have not to enquire into the question of notice presented by the pleadings. Said judgment cannot be considered as in any manner complained of, or appealed from by them, as they have not thought proper to join issue with the plaintiffs and appellants, or to appeal from it.

It is, therefore, ordered and decreed, that the judgment of the District Court be so amended, as to order further, that the property mortgaged be seized and sold not only to satisfy the amount claimed in the petition, for cash, but that the same be also sold on such terms of credit as are granted by the contract of mortgage, for the payment of the other eight notes therein specified as not due at the time of the institution of this suit; and that the judgment appealed from be affirmed in all other respects, with costs in both courts.

Winter, for the appellants. Boyle, for the defendants.

The judgment was only for the amount of the notes already due, no notice being taken of the prayer for the sale of the property on a credit to meet the other notes as they matured.