Dakin v. Ganahl & Co.

JEustis, J., delivered the opinion of the court. An order of seizure obtained by the defendants against a number of lots in the possession of the plaintiffs was enjoined at their instance. The injunction was dissolved, and the plaintiffs have appealed. The only question presented in this case is, whether there is any evidence, by authentic act, of the transfer of the note and mortgage on which the order of seizure was granted. The first endorser on the note is Cornelius Hurst, in whose favor the note was drawn. The act of sale, with which the note is identified by the signature and certificate of the notary, acknowledges the delivery of several notes as the price of the lols sold. The note in question is described as being to the order of Cornelius Hurst, but no mention is made in the act of sale of his having endorsed it. The endorsement is a matter in pais, of which the act itself contains no proof; no authentic evidence of the fact is before us. The transfer of (he mortgage by the vendor and mortgagee to the holder of the note does not remove the difficulty. The act proves nothing more than it purports to contain, viz., that the note was paid by the holder, and that the mortgage stipulated in favor of the mortgagee is transferred to the holder of the note. It does not prove that Hurst ever endorsed the note. It is true that Hurst was a party to the original act, in which he relinquishes his bid to Dakin & Dakin, but this fact repudiates the supposition that he endorsed the notes, before or at the time of passing the act, for no mention of his having endorsed them is made in the act. It may be conceded that he endorsed them, but the objection is that there is no record evidence of the fact. The defendant, under these facts, could not proceed by the executory process for the recovery of his debt. The judgment of the District Court is, therefore, reversed, and the seizure and sale of the property described in the petition, under the order of the District Court, is enjoined. The defendants and appellants to pay costs in both courts.