Union Bank v. Dosson

By the court: Rost, J. This is an appeal from the refusal of the district judge to grant the plaintiffs an order of seizure and sale of certain property mortgaged to them, by H. B. Johnson and wife, to secure a loan of money, and now held by the defendants as third possessors. The appellees pray for the affirmance of the judgment, on the following grounds : 1st. The mortgage, so far as they are concerned, has been lost, for want of reinscription within ten years. 2d. The evidence upon which the order is asked, is not all authentic. 3d. The claim against the principal debtor) is barred by lapse of time. The mortgage given by Johnson and wife, was given directly in favor of the Union Bank, for a loan of money; it comes, therefore, under the letter of the Act of 1843, dispensing all such mortgages from the necessity of reinscription. It may be observed, that the mortgage sued upon, was given within the ten years which preceded the promulgation of that act. The first ground is, therefore, not tenable. 4 Ann. 471. More than ten years elapsed since the signing of the bond, but several partial payments are endorsed upon the back of it, by the cashier of the bank, the last of which, purport to have been made within the ten years which preceded the institution of these proceedings. This evidence of payment would, perhaps, be unobjectionable if the plea of prescription could not be set up. But, as the obligation is prima facie prescribed, there must be authentic evidence of the interruption of the prescription, before the party can proceed by the via executives. The receipts of the cashier, so far from having that character, would not be admissible to prove the interruption of prescription in an ordinary suit. His testimony to the same fact being superior evidence, we are, therefore, of opinion, that the district judge did not err, although we do not agree with him in the reasons he gave for refusing the order of seizure and sale. The judgment is affirmed, with costs. Slidell, J. Where an obligation is on its face so ancient as to appear to be prescribed, I do not think an order of seizure and sale should be issued upon it, especially against a third possessor, without authentic evidence, that prescription has been interrupted or renounced. Here, there was no such evidence. The endorsements of payment by the cashier, have no authenticity. Considering this a sufficient reason for not disturbing the decree of the district judge, I have not thought it necessary to express an opinion upon the subject of reinscription.