Bank of White Castle v. Baker

BRUNOT, J. This is a suit via ordinaria upon two mortgage notes aggregating the principal sum of $3,500, with 8 per cent, per annum interest thereon front Hay 28, 1922, and 5 per cent, of said notes and interest as attorney’s fees, coupled with an attachment of the mortgaged property, and a demand for $1,171.10, with interest thereon at the rate of 5 per cent, per annum from June 10, 1926; and for the further sum of $539.02. There is also a demand for the correction of a clerical error in the description of the mortgaged property, for the maintenance of the attachment, and for the sale of the property to satisfy the mortgage indebtedness. The item of $1,171.10 represents the sum the plaintiff alleges it had to pay to redeeni the mortgaged property which had been adjudicated to the Bank of New Roads at a delinquent tax sale thereof for the nonpayment of the taxes 'due thereon for the years 1921, 1922, and 1923. The item of $539.02 represents the sum of the taxes assessed against the mortgaged property for the *19 years 1924 and 1925, which the plaintiff alleges it paid. The answer is, in effect, a plea of payment. It alleges an executed agreement under the terms of which all claims of the plaintiff against the defendant were liquidated. The trial of the case resulted in a judgment in favor of the plaintiff for the sum of the mortgage notes, with interest thereon and attorney’s fees, as prayed for, and for the further sum of $1,130.78, the actual amount the court found the plaintiff had paid to the Bank of New Roads to redeem the mortgaged property, together with interest thereon at the rate of 5 per cent, per annum from July 7, 1926, and all costs of the suit. There was further judgment correcting the error in the description of the mortgaged property, and ordering it sold to pay the mortgage indebtedness. The defendant applied for a new trial, or, in the alternative, for a rehearing. The court declined to grant either and the defendant appealed. The plaintiff has answered the appeal and prays that-the judgment be amended by increasing the amount awarded therein to $5,-263.60, and, as thus amended, that it be affirmed. It is the settled rule that the burden of proof is upon him who pleads payment or the liquidation of a debt, to establish the plea by a fair preponderance of the evidence. The agreement upon which defendant relies is in the form of a letter dated April 12, 1923, addressed to Messrs. Monroe & Lemann, attorneys for Bowie Lumber Company, Limited, New Orleans, La., and signed by Thos. J. Clay, president of the plaintiff bank. The trial judge found that the mortgage notes sued upon were not included'in the amounts due the plaintiff which were to be liquidated under the terms of said letter. He found that this view was sustained by a preponderance of the evidence; that the writer of the letter had no authority to include the mortgage notes in the agreement; but if the agreement can be so construed, his act was not ratified by the plaintiff’s board of directors. We have read the record carefully and concur in the judge’s finding of facts. The trial judge, in his well-reasoned opinion, sustains the validity of the tax sale of the mortgaged property. The invalidity of that sale was not pleaded. In the absence of some pleaded irregularity or defect, there is nothing to adjudge. The trial judge correctly held that the defendant’s plea of prescription of three years against all tax mortgages and tax privileges claimed by the plaintiff did not apply to the taxes themselves, but only to the mortgages and privileges securing them. See Rousset v. City of New Orleans, 110 La. 1040, 35 So. 281; Miramon v. City, 52 La. Ann. 1623, 28 So. 107; Homestead Ass’n v. Garland, 107 La. 476, 31 So. 892; Leeds & Co. v. Hardy, Treasurer, 43 La. Ann. 810, 9 So. 488. We think the trial judge properly held that at the expiration of the redemption period, at which time the Bank of New Roads became the absolute owner of the property, the tax mortgages and tax privileges to which . it was subrogated were extinguished by con *21 fusion. We also think that the judge correctly held that, after the expiration of the redemption period, the hoard of directors of the bank could waive its right to refuse to permit the plaintiff to redeem the property. With, respect to the claim of $530.02, the taxes on the mortgaged property for the years 1924 and 1925, which the plaintiff alleges it paid .to the Bank of New Hoads, we find, as did the trial judge, that this item is not sufficiently proved, and, as to it, the entry of a judgment of nonsuit was correct. The prayer of the plaintiff’s petition is for a judgment “in rem.” The judgment of the district court maintains the writ of attachment and properly limits the execution of the judgment to the property attached. For the reasons stated, the judgment appealed from is affirmed, at appellant’s cost.