Layman v. Succession of Woulfe

LAND, J. Plaintiff sued out executory process on two notes executed by Maurice J. Woulfe and secured by vendor’s privilege and special mortgage as shown by act of sale purporting to have been passed before a notary public and two witnesses. One Harry A. Thompson filed an intervention in said executory proceedings, coupled with an injunction against the sale of the property, based on allegations substantially as follows: That intervener was the holder and owner of two certain promissory notes identical in date, amount, and tenor with the two notes sued on by the plaintiff, and identified by the paraph of the same notary with the same act of sale. . That said act of purchase and mortgage was not an authentic act, importing confession of judgment, because neither the vendee and mortgagor, Maurice P. Woulfe, nor James Jameson, one of the two alleged subscribing witnesses, ever appeared before E. P. Cousin, notary, nor subscribed their names in his presence; “said act being therefore unauthentic, and availing only as a private writing.” That the mortgage notes held by the intervener are secured by mortgage and vendor’s lien upon said property through the said private writing, although said act has not the force of an authentic act. That the plaintiff, alleging himself to be the owner of the two mortgage notes described in said act, obtained an order of ex-ecutory process, under which the sheriff had seized the mortgaged property, and advertised the same for sale. That said proceedings, and seizure and intended sale, are illegal and unauthorized by law, because said act is not -in authentic form and does not import a confession of judgment. Intervener prayed for judgment perpetuating the injunction and for costs and all general and equitable relief. Plaintiff excepted to the petition of intervention on the ground that it disclosed no valid or legal cause of action. Plaintiff, reserving the benefit of his exception, answered that the notes held by the intervener, together with the notary’s signature and paraph thereon, were false and forged. Plaintiff prayed for judgment dissolving the injunction with damages, and dismissing the demand of the intervener at his costs. [769] No evidence was adduced, and the case seems to Pave been submitted on tbe face of tbe pleadings. There was judgment dissolving the writ of injunction, reserving the rights of all parties. [1] Record No. 20648 appertains to the dismissal of intervener’s suspensive appeal in the court below. The appeal was properly dismissed, because the amount of the bond for a supersedeas was not fixed by the judge, and the law fixes the amount only where the judgment is for a sum of money. Code of Practice,- arts. 574, 575; Succession of Lynch, 124 La. 127, 49 South. 1002. Plaintiff annexed the notes sued on to his petition. Intervener does not allege that said notes were forged, but, as the alleged holder of duplicate notes secured by the same mortgage, sought to arrest the seizure and sale of the property on the sole ground that the act of mortgage was not, as it purports to be, passed before a notary and two witnesses. The representatives of the succession of the deceased vendor and mortgagor, defendants herein, have made no objection to the proceeding, via executiva. It has been held that interventions are not allowed in proceedings via executiva; and that third persons must assert their rights in direct actions. Chambliss v. Atchison, 2 La. Ann. 488. This case was cited and applied to other summary proceedings in Bank of Louisiana v. Delery, 2 La. Ann. 649, Succession of McCarty, 5 La. Ann. 435, and State ex rel. Bienvenu v. Wrothnowski, 17 La. Ann. 159; and was differentiated in the case of Brugier v. Miller, 114 La. 423, 424, 38 South. 404, where it was properly held that an opposition claiming ownership of the thing seized, or an opposition claiming a privilege on the proceeds of the thing seized, is allowable in executory proceedings under the text of article 396 of the Code of Practice. But in the case at bar the intervener does not claim ownership of the property seized, and his assertion of a privilege on the proceeds of the property would not have entitled him to an injunction. [2] It is settled beyond dispute that an intervener must take the suit as he finds it, and cannot complain of the form of action, or of informalities or defects in the proceedings between the original parties. See Code of Practice, art. 389, Garland’s Notes (D). One of the cases cited is that of a defective affidavit on which a writ of sequestration, had issued. Hawkins & Roberts v. Beer, 37 La. Ann. 55.. Both judgments appealed from are affirmed.