Hoffman v. Steib

IIowe, J. Tlie defendant has appealed from an order of seizure and sale rendered in executory proceedings for the enforcement of a mortgage granted by Joseph Hoffman in favor of his minor children (of whom the plaintiff is one), and assumed by the deiendant in his purchase of the property directed to he seized and sold. It appears from the act that the principal amount secured in this way is not duo until the majorities of tho minors respectively. The plaintiff alleges in her petition that the debt is exigible, “ she being emancipated by marriage; ” but while this allegation makes it clear that she had not .arrived at the age of twenty-one when she was marrieu, it dees not declaro her to ho of age when the order was obtained. And if the petition had so declared, there is no authentic evidence of tlie fact. Tim net of salo shows that the plaintiff was a minor in I860. It does not show, as it might easily have done by proper recitals, that she must have became of age on or before July 18, 1863, when the order appealed from was granted. That the debt is due is not, therefore, established by such evidence as the law requires as a foundation for the executory process. It is therefore decreed .that tho order of seizure and sale appealed from he avoided and annulled, and that the plaintiff pay tho costs-of both courts.