Scott, Williams & Co. v. Turner

Buchanan, J. The petition of plaintiffs alleges, that they are holders and owners of a note, annexed to the petition, made by defendant, a resident of New ■ Orleans, payable to the order of John M. Bach, and by him endorsed in blank ; which note is secured by special mortgage upon land in the parish of St. Helena, (whore the suit is instituted,) in favor of John M. Bach, the payee, or of any lawful holder of the note. The act of mortgage is also annexed to the petition. Petitioners pray for citation to defendant, and for judgment for the amount of the note and interest, and that the property mortgaged he seized and sold in execution of said judgment. Defendant pleads want of jurisdiction in the District Court of St. Helena, by reason of his residence being in Orleans; and also, that the plaintiffs do not allege a transfer to them of the mortgage. Judgment having been rendered in conformity to the prayer of the petition, defendant appeals. Plaintiffs have answered the appeal, and pray for ten per cent, damages, as for a frivolous appeal. The suit was well brought in the parish where the mortgaged property is situated, inasmuch as the act 'of hypothecation imports confession of judgment, and the petition contains a prayer for the seizure and sale of the mortgaged property. O. P. 163 ; 11 Rob. 387. The plea of want of an allegation of the transfer of the mortgage is untenable. The petition alleges a transfer of the note, by endorsement of the payee; and the transfer of the note, which is an evidence of a debt, includes a transfer of the mortgage, which is the accessory of the debt. C. 0. 2615. The note and the act of mortgage are annexed to the petition, as part of the same. The mortgage is in favor of the payee, or of any holder of the note. The right, therefore, of the plaintiffs to enforce the mortgage, without a formal subrogation, is undoubted. 11 An. 4; ibid 34. Judgment affirmed, with costs. Duffel, J., took no part in this decision.