Moss v. Byrnes

Martin, J., delivered the opinion of the court. The defendant is appellant from an order of seizure and sale, granted on an authentic act of mortgage, by which he acknowledged himself indebted to the plaintiff in a sum for which he had executed his note, payable at a particular place, and to secure the payment of said note, he mortgaged, etc. He assigns as error apparent on the face of the record, that the plaintiff’s petition did not allege a demand of payment at the place named in the note, and that there is no proof of such a demand. This case -^as been submitted to us without any argument. The authentic act acknowledging a debt, might have been . , ... the ground of a personal action, because the giving a note 6°es not discharge a pre-existing debt. We do not mean to that a recovery could be had, without producing or J J , * . - accounting for the note, which might have been negotiated at the time of the suit, or could be so even after judgment. [617] la the present case, however, the áct expressly sets forth, that the mortgage is given to secure the payment of the note, on which no personal or hypothecary action can be supported* until payment be first demanded at the place therein named. Such a demand is neither alleged or proved in this case. It is, therefore, ordered, adjudged and decreed, that the order of seizure and sale be set aside, and that the plaintiff and appellee pay all costs.