Young v. Ellis

90 So. 373, 149 La. 1001, 1922 La. LEXIS 2355

• Court: Supreme Court of Louisiana
• Decided: January 2, 1922
• Docket: No. 24692
• Status: Published

Opinion

PROVOSTY, J.

Plaintiff having caused certain horses and mules and horned cattle to be seized in foreclosure of a chattel mortgage given by the defendant A. M. Ellis, the mother of A. M. Ellis filed a third opposition, claiming that the horses and mures belonged to her, and that her son had mortgaged them without authority. ' .

Plaintiff contends that the son had implied authority, and that, moreover, the third opponent, by her conduct after the mprtgage had been given, estopped herself from contesting the mortgage.

This implied .authority is said to have resulted from the fact that the matter of the giving of the mortgage was discussed at different times in the presence of third opponent, so that she must have known of her son’s design to give it. And the estoppel is. said to result from the fact that the money for which the mortgage was given was used for the benefit of third opponent and of her plantation.

Opponent denies having had the knowledge thus imputed to her, and we doubt that she had. The discussions in question took place on the occasion of the plaintiff having come to the house of opponent to take some cattle which the défendant, who lived with opponent, his mother, had sold him, and in connection with the repurchase of the cattle by the son, and they culminated in this resale being made, and this mortgage given. A $600 profit was allowed plaintiff, and a cash payment of $500 was made. This- $500 was furnished by another son of opponent.

[1] All we need say of the alleged estoppel is that, if any money was used for opponent’s benefit or that of her plantation, it could only have been before the mortgage was given, and hence could not possibly serve to es-top opponent from contesting the mortgage.

The case is here on writ of review to the Court of Appeal.

[2.] Our Brethren recognized that the mandate for the giving of a mortgage must be express (C. C. art. 2997), and yet sanctioned this mortgage, although there is no pretense of the authority to give it (if any at all there was, and we believe there was none) having-been express. The young men, sons of opponent, were in the habit of acting for her in the management of her business, and, for all that appears, simply assumed that the giving of this mortgage was within their authority.

In the case of Mangum v. Bell, 20 La. Ann. 215, cited by our Brethren, the authority to the agent had been express.

Cur Brethren also thought that opponent had ratified the giving of this mortgage by not contesting it as soon as she learned of its having been given. There was no legal obligation on her part to do so, and, moreover, plaintiff’s position was,in no way made worse by her silence.

The judgment rejecting the third opposition of opponent is therefore set aside, and the judgment of the district court maintaining same is reinstated and made the judgment of this court. The costs of this court to be paid, by plaintiff.