Tufts v. Beard

Campbell, J. (Vooruies, J., and Buchanan, J., absent.) Tufts, Fermor & Go., claiming by virtue of various endorsements, to be the holders and owners of certain mortgage notes, signed by J. B. Beo/rd and payable to his own order, and endorsed by said Beard and others, obtained, upon exhibiting said notes, with a copy of a public act of mortgage (with which they were identified) from Beard to Henry Blood, an order for the seizure of the mortgaged pro-property. Under this order, a sale was made and the property adjudicated to John Steep. From this order, decreeing the sale of the mortgaged property, S. Hollings-worth, who claims to be the owner of the property seized and sold, has taken this appeal. Appellant claims that the judgment ordering the sale of the property b e reversed; that the proceedings under it be annulled, and he restored to the possession of his property. The order of seizure and sale was improperly made by the Judge below, it having been granted without evidence of assignment to petitioners of either the notes or mortgage — both of which, to justify proceedings via executiv a, should have been made to appear by authentic act. The Judge can take cognizance of no matters resting en pais. Fitzwilliams v. Wilcox, 7 R. 303. Lee v. Drummond, 4 L. 321. French v. Mechanics' and Traders' Bank, 4 An. 152. Steep, to whom the property was adjudicated, not being before us, we cannot inquire, on this appeal, into matters subsequent to the order directing the seizure and sale. Any relief to which the appellant may be entitled for alleged irregularities after the judgment, must be sought by a direct action. It is ordered, adjudged and decreed, that the order of seizure and sale appealed from be annulled, reversed and set aside, and the suit dismissed at the costs of appellant.