Grayson v. Mayo

The judgment of the court was pronounced by Kino,- J. The plaintiff, in his capacity of tutor of James P. Bowden, is the holder of three promissory notes, secured by a special mortgage on a slave, adjudicated to McLendon, at the probate sale of the succession of the minor’s ancestor. The notes matured respectively on the 25th days of March, 1839, 1840; and 1841. At the probate sale of McLendon's property, the slave subject to this mortgage was purchased by the defendant, Mayo. The existence of the encumbrance was announced by the auctioneer, and the slave sold subject to the mortgage in favor of the succession of Bowden. The object .of the present action is to enforce this mortgage on the slave in question, in the hands of the defendant. The defendant denies the existence of the mortgage, which he contends was extinguished by the1 probate sale, and further pleads the prescription of five years. A judgment was rendered in the court below in favor of the plaintiff for one of the notes, and recognising the mortgage on the slave, from which the defendant has appealed. The plaintiff asks for an amendment of this judgment, and urges that the prescription in regard to the two notes which first matured was interrupted by the acknowledgments of the administrator of McLendon, of the existence of the debt. [928] The principle has been well settled, that the'piirchaser of property at a- aale ordered by the Probate court, acquires it free-from the mortgages created by the deceased. That such is the effect of probate sales when there has been no reservation made in regard to encumbrances cannot be questioned, after the repeated decisions in which the principle has been recognised. But the reasons-on which those decisions are founded have no application to sales containing an-express covenant that, the adjudication shall not operate a discharge of the encumbrances-. No law prohibits such a stipulation-, and the purchaser at a sale containing such a condition is bound by the contract. The procés-verbal of the parish judge in the present instance states that, “a mortgage was proclaimed to exist on the slave Lot, in favor of the succession of Elizabeth Bowden, deceased,. for the sum of Jpl,060, and- that said slave was sold subjeetto that mortgage.” The stipulation that the mortgage should remain unimpaired by the-adjudication, and follow the property in the hands of the purchaser, is positive- and distinct. The defendant acquired the slave subject to the encumbrance,which- may be enforced against him.- The acknowledgments of the administrator of McLendon's succession, that the debt evidenced by the notes sued on was still due, and that payment of it had frequently been demanded, were made after the sale to Mayo, and after two of the notes had been prescribed. The extinction of those notes carried' with it the extinction, pro- tanto, of the mortgage. Whatever may have been the effect of the administrator’s recognition of the debt as far as regards the-succession which he administered, if could not revive the mortgage upon pro^ periy in the hands of tho third possessor, without the express assent of the-latter. Larthet v. Hogan, 1 An. Rep. 330. The amicable demands of payment upon the administrator, had not the effect of arresting the prescription.The only demand by which prescription is interrupted is citation. The-plaintiff contend's that the parish judge was not authorised to take negotiable notes for the price of property adjudicated at the sale of Bowden's succession-; that the words “or order”, inserted in tliem, are surplusage; and-' that the only description of bonds which he was authorised by the terms of the-sale to receive, were subject to a prescription of ten years only'. The plaintiff having received the notes and made them the foundation of his action against the defendant, has affirmed the acts of the judge, and cannot now question the authority of the latter, nor change the character of his demand. We consider the notes sued upon-as negotiable- instruments in their form and legal effect, and as such subject to the prescription of five years. Judgment affirmed.