Baker v. Bank of Louisiana

The judgment ,of the court was pronounced by Slidell, J. In the year 1837, the Bank of Louisiana'took a mortgage, with, the pact de non alienando, from Samuel Wimbisk, upon a-tract of land in the parish of West Feliciana, to secure an indebtedness of Wimbisk, and, the debt not being paid, obtained an order of seizure and sale. The sheriff having made seizure of the land, the-plaintiff instituted this suit to enjoin the sale. There was judgment for the defendants in the court below dissolving the injunction, .and the plaintiff has taken a devolutive appeal. The only objection presented in argument to the validity of the bank’s mortgage is, that the mortgage act does not sufficiently describe the property, and -consequently that its registry in the mortgage office was not notice to third persons, and not binding upon the plaintiff, who has a notarial act of sale from Wimbisk of the property, of a date posterior to the mortgage. The description in the mortgage to the bank is -as follows! “ A certain tract of land, ora parcel of ground, with the improvements thereon, situate, lying and ¡being in said parish, on the bayou Tunica, being the land and plantation purchased by the said Samuel Wimbisk, at the probate sale of Samuel Davis, de " eeased, containing five hundred and eight acres.” This description is substantially the same as that in the act of sale from Wimbisk to the plaintiff, with the exception that the latter gives the boundaries or adjoining estates. We consider the description sufficient. It states the parish, a stream on ■which the property lies, the number of acres, and the use made of the property, and recites the origin of Wimbisk’s title, which is shown by evidence to have been by deed recorded in the same parish. No one can suppose that Baker, or any other party dealing with Wimbisk, and examining the records of the mortgage office, could have been deceived. It is said that Wimbisk, as is shown by the testimony, owned other tracts on the bayou Tunica; but it does not -appear that any of them corresponded in size with this, or were cultivated as plantations. We must also observe that, there are circumstances which go very far to prove actual knowledge by Baker, of the mortgage of the defendants. Baker was the son-in-law of Wimbisk, at the -date of his alleged purchase, and living [372] in tlie same parish with him, in which parish the land was. The sale purports to be for $5,00.0 cash; and the vendee dispenses the notary from the duty imposed upon hinj by law, of procuring .and annexing a mortgage certificate, and this without any declaration by the vendor that there were no encumbrances. There was a special s.ubrogatjon to the warranty of Wim,bisk’s vendor. In his petition for injunction, Baker d.oes no,t allege ignorance .of the mortgage. The appellees have prayed that the judgment be amended s.o .as to allow them interest apd daipag.es, and they ape entitled to ih,eip. It is therefore decreed that the jpdginent .of the court hejow he so .amended, that the defendants recover .of the plaintiff, John D. Baker, and Stephen C. Cobb, his surety, in .solido, the sum .of $631 34, hearing interest at ten per cent on the judgment injoinod from th.e service of the injunction to the d.ate of dissolution by the .court below; and the further sum .of $15D, as special damages ; that the .cost of this appeal be paid by the plaintiffs; and that in ail other respects the judgment of the .court, below be affirmed.