New Orleans Insurance v. Tio

Merrick, O. J. The opinion of the District Judge is as follows : “ Plaintiffs, tho holders of a mortgage note for $2,500, drawn by defendant, took out executary process and caused the mortgaged property to be seized and sold, to satisfy said mortgaged note, Joseph Marcos Tio et ais., file their third opposition, and claim to bo judgment creditors of said defendant, with a legal mortgage on all his property, from 27th August, 1837, by reason of a certain judgment rendered in their favor by tho Fifth District Court of this city against Eranáseo Tio, No. 1138G of the docket of said court. By reference to the proceedings in said suit, it appears that said judgment exceeds $200,000, and ivas obtained against the defendant for having despoiled plaintiffs of the entirety of the succession of their ancestor, situated in Tobasco, Mexico, and Pensacola, Florida ; and they claim that by virtue of Art. 3283 C. C., they have a legal mortgage on the property of the defendant, reckoning from the day on which the first act of interference was done. From the evidence, it appears that the defendant, took possession of the valuable estate of Tio, situated in Tobasco and Pensacola, and converted the same to his own use. Does such a spoliation and conversion of the ancestor’s property, give a legal mortgage on all defendant’s property in this State, to the prejudice of bona fide resident creditors of this State ? At the time of the death of Tio, and the spoliation and conversion of the estate, the opponents were all residents of Tobasco, and tho conversion took place at Tobasco and Pensacola. I consider that the Article 3283 only applies to interferences with the minor’s property, which is situated and is the subject of administration in this State, and cannot be extended to interferences or conversions of the minor’s property situated abroad. See Pratts v. His Creditors, 12 Rob. 508; Arnold v. McBride, 6 An. 703; Stewart v. His Creditors, 12 An. 89 and 849. “ So that to entitle a minor to claim a legal mortgage on the property of a person who interferes in tho administration of his property, it is necessary that tho person interfering, as well as the property interfered with, shall be domiciled or located in this State. The debt must originate here, and the properly interfered with, must be the subject of administration in this State.” Tho foregoing opinion, which wo adopt as our own, disposes of the whole case, except as to the, slave Nancy. We, think, that after the minors wore removed to Louisiana, through, tho agency of defendant, a mortgage attached upon his [175] property, under Art. 3283 C. C. to protect them against liis unauthorized administration of their property situated here. But we agree with plaintiff’s counsel, that inasmuch as this is the only debt bearing a mortgage, the payment already made must be imputed to this debt. Sec C. C. 2162; Forstall & Co. v. Blanchard, 12 La. 6; Dunlop, Moncure & Co. v. Tarkington, 5 An. 569. The administration of the defendant having affected only a single thing in this case, there is no reason to apply the rule recognized in the case of Brown v. Roberts, 14 An. We think the judgment of the District Court must be affirmed, which is accordingly done.