Alling v. Beamis

Simon, J., delivered the opinion of the court. This is an action of mortgage, instituted by the plaintiffs against the third possessor of a certain town lot. The record shows that on the 10th of June, 1836, French and Meux sold the lot to Florance & Co., who gave four notes of four hundred and eighty-one dollars and twenty-five cents each, in part payment of the price; on the 25th of January, 1837, Florance & Co. sold the same lot at auction to one Gloyd, who on the same day sold the same by auction to Bergen ; and Bergen, on the 17th of February, sold again the same lot by auction to plaintiffs. No act of sale from Florance & Co. to Gloyd was passed until the 25th of February, and in the said act, Gloyd assumed the payment of two of the notes of Florance & Co. to French and Meux. It appears to have been understood between the successive vendors and purchasers, that the two outstanding notes due by Florance & Co. to French and Meux were to be assumed and paid by the last purchaser, but no act of sale was ever passed from Gloyd to Bergen, nor from Bergen to the plaintiffs. On the 5th of June, 1837, plaintiffs, in compliance with the conditions of the adjudication, paid the two notes in bank. In December, 1838, the defendant, who as endorser of the notes of Gloyd to Florance & Co., had been compelled to pay the last note [389] due on the 25th of July, 1838, to the amount of one thousand three hundred and eighty-four dollars and seventy-two cents, issued an order of seizure and sale against the lot, and purchased it at sheriff’s sale to an amount not sufficient to secure himself; the certificate of mortgage found in the record shows that the lot must have been sold by the sheriff, subject to the payment of the two outstanding notes secured by mortgage ; and this we are to presume, as the record does not contain any of the proceedings had on the order of seizure and sale by the sheriff, nor does it contain the sale from the sheriff to the defendant. In this state of the case, it is contended by the plaintiffs that they are entitled to be reimbursed the amount by them paid to French and Meux; in discharge of the two notes secured by mortgage ; having become subrogated to the rights of the vendors, and they pray that the lot in question be surrendered, in order that it may be sold to satisfy their demand as a mortgage claim. On the other hand, the defendant denies the plaintiffs’ right Of mortgage, and avers that having purchased the lot at sheriff’s sale, he is the owner of it, without any mortgage or incumbrance of any kind. We are not to examine into the title which the plaintiffs may have acquired to the lot in question, since they do not sue for the property; but it may be necessary to look into it so far as to ascertain the reason which induced them to take up the two notes due to French and Meux; from the evidence, it appears that they did so, in compliance with the terms of the sale, and in the belief that they were the rightful owners of the lot; and if so, they had a right to pay the mortgage creditors. Under the 2586th article of the Louisiana Code, the adjudication is the completion of the sale, and the purchaser becomes the owner of the object adjudged ; from this moment, the plaintiffs had a right to claim the property as purchasers thereof; and as such, they had an interest in employing the price of their purchase in paying the creditors in favor of whom a prior mortgage existed on the lot. Louisiana Code, article 2157, section 2. The title of the plaintiffs [390] t0 property in question, resulting from the adjudication, have been destroyed by subsequent circumstances ; but it is nevertheless true, that at the time of the payment, nothing prevented them from considering themselves the owners of it, and from complying with the terms of what they had every reason to believe to be their contract. We think, therefore, that the plaintiffs, by paying the two notes due to French and Meux, have-acquired a legal subrogation to the rights of the creditors, who had a mortgage prior to that under which the defendant purchased the lot at sheriff's sale. The purchaser of property previously mortgaged takes it, subject to the balance due on such mortgage, whatever it may be, and retains this sum in his hands over and above the price he bids, to be paid to the rightful owner. But it is contended, that at the time of the sale to the defendant, there was no mortgage on the property, since the amount of the notes had previously been paid to the mortgage creditors. Whether this position be correct or not, the certi1 ficate of the recorder of mortgages shows that the mortgage given to secure the payment of the notes had never been re]ease¿¡ • and if, as we have already said, we are bound to presume, until the contrary be shown, that the sheriff sold the property according to law ; Code of Practice, article 679 an^ 683, it results that the lot was sold, subject to the mortgage apparently existing, that the amount of the notes was . , ■ a part of the price, and that the defendant retained, and has in his hands, the very money required to satisfy the debt for which he is now sued. This circumstance alone would be sufficient to entitle the plaintiffs to recover; the defendant has certainly no right to keep the amount proceeding from the price of his adjudication, it must be paid over to somebody ; it cannot be paid to French and Meux, who have received it from the plaintiffs; it does not belong to Florance & Co., who were the drawers of the notes; Gloyd cannot set up any claim to it, since it was a debt which he had originally assumed to pay as part of the price of his purchase, and we see no reason why the defendant should be allowed to keep both the price and the property, and thereby to enrich himself at the prejudice of another. We think that the judge a quo erred in giving judgment in favor of the defendant; and ours must be for the plaintiffs for the amount of the notes, with legal interest from judicial demand. The inferior court has no longer any power over an appeal, after it is once granted. The Supreme Court alone has jurisdiction over this case, when an appeal is once taken. We have not thought necessary to notice the question of res judicata, raised by the defendant; it is untenable; but the proceedings which gave rise to it are so novel in their characteiy and so irregular in practice, that we cannot forbear expressing our astonishment that the judge, before whom . ' ii . , „ . ¶ . -, .i . they were had, could for a moment entertain the idea that, after having granted an appeal, he could legally, and on motion of the appellee, take cognizance of its propriety and of its merits; and render a judgment, (here the basis ot the plea of res judicata,) rescinding his former order, and dismissing the appeal. It is well settled that this court alone has jurisdiction of a case in which an appeal has been granted, and that no further proceedings can be had therein in the lower court, until the case has been disposed of by this tribunal, and its mandate returned below for execution. It, is, therefore ordered, adjudged, and decreed, that the judgment of the Commercial Court be annulled, avoided and reversed; and this court proceeding to give such judgment as ought to have been rendered in the lower court, it is ordered, adjudged and decreed, that the plaintiffs do recover of the defendant, the sum of nine hundred and sixty-two dollars and fifty cents, with legal interest per annum thereon, from the 6th of May, 1839, until paid, with costs in both courts ; and that the property described in the petition, be seized and sold to satisfy this judgment.