Heirs of Fowler v. Beatty

Vooriiies, J.

On the 10th of July, 1840, Abner Pobinson made six promise sory notes to the order of Joseph Fowler, jun., amounting to $59,254, with ten per cent, interest from maturity until paid, and to secure the payment of the same mortgaged a certain plantation and'slaves. On the 7th of April, 1841,, he also made six other promissory notes, each for the sum of $5,000, to the order of W. Bogczi't & Co., which were endorsed in blank by the latter, and.in»-ventoried as belonging to the succession of Joseph Folder, jun., deceased..

The plaintiffs allege that the succession of Joseph Fowler, jun., was opened iii¡ August, 1S50, in the Second District Oourt of New' Orleans 5 that they were, duly recognized as his legal heirs, and as such put in possession of his succes-. sion, administered by Wilhelmus Bogart, as curator, by virtue of a decree cf that court; that upon a judicial partition, the Pobinson notes w7ore allotted to, certain of the heirs named in the petition, some of whom represented by John L. Dufief, James J. Fowler, and John II. Skinner, as their attorneys in fact;, that the capacity of said attorneys in fact is judicial^ recognized in the pro-v ceedings of the succession, a copy of which proceedings being annexed to this-, petition ; that after allowing all credits to w'hich the maker of the notes is cn~-titled, and which are endorsed thereon, the sum of $1.36,911 86,, will be due to. *276 them on the 10th of February, 1854, as appears from the statement of interest annexed to their petition; that Aimer Robinson, whose estate is legally represented by Adam Beatty, died several years since; and that they exhibit against his estate a title and evidence of debt to the amount of $148,510 50, with interest, importing a confession of judgment and a special mortgage and privilege on the property described in their petition. The petition concludes with a prayer for an order for the seizure and sale of the property to satisfy their demand.

The order prayed for was granted on the 28th of December, 1853, for the sum of $136,911 80 ; with ten per cent, per annum interest thereon from the 10th of February, 1854, until paid, and $'250, charges for copies of records and acts filed with the petition. The defendant has appealed from this order of seizure and sale, and assigned for its avoidance, as ‘errors apparent upon the face of the record, 1st. That “ there is no authentic evidence of the transfer to J. Fowler or his heirs of the mortgage granted to W. Bogart & Co., bn which the order of seizure was taken.” This objection is well taken. The inventory of Fowler's estate is not in evidence. The endorsement of W. Bogart & Oo. is a matter in pais, of which the act of mortgage contains no proof; nor is there any authentic evidence of the transfer from them to the plaintiffs before us. It is well settled that the endorsee of a note secured by mortgage is not entitled to executory process against the mortgagor, without authentic evidence of the transfer to him both of the note and mortgage. 12 R. 230 , 13 L. 515 , 6 N. S. 531, 4L. 321. 2d. “There is no authentic evidence of the capacity of the parties as heirs and agents and attorneys of heirs in which they assume to act in this case.” There is no authentic evidence in the record of the alleged agency of John L. Bufief, James J. Fowler and John U. Slcinner. It is true there is an allegation to thateffect in the petition on which thejudgment putting the heirs of Fowler in possession of his estate is based, but we think this is insufficient, inasmuch as nothing shows that the principals intended to confer on their agents under the alleged powers of attorney, any other authority than that which was necessary to accomplish the object for which those proceedings were instituted. 4 A. 61 , 5 A. 117 , 2 A. 491 .

We may also observe there is no authentic evidence of interruption of prescription. Union Bank v. Dosson, 7 An. 550.

The view which we have taken of the case renders it unnecessary to notice the other objections.

It is therefore ordered and decreed that the order of seizure and sale in this case be set aside and avoided at the plaintiffs and appellees’ costs. This decree to be without prejudice to the rights acquired by the purchaser under the order of seizure and sal$ already executed.

In this case it is ordered that the decree be amended so as to read as follows .

It is therefore ordered, adjudged and decreed that the order of seizure and sale granted by the Judge d quo be set aside and avoided, the plaintiffs and ap-pellees to pay the costs of both courts, and this decree to be without prejudice to the rights acquired by the purchaser under the order of seizure and sale already executed.