Pavy v. Escoubas

Taliaferro, J. Tlie defendant, in her capacity of administratrix of tho estate of her deceased husband, is sued upon a promissory noto executed by him on the tenth of March, 1862, in favor of Lobit, Charpoutier & Co. or their order for $3183 61, made payable on*’the fifteenth of March, 1863, and stipulating the payment of interest at eight per cent, per annum from maturity until paid. On the fourteenth of April, 1860, the maker of this note mortgaged several tracts of land, tying in the parish of Assumption to secure tho payees of the note, against loss or liability they might incur from advances, acceptances and indorsements to he made by them for the benefit and accommodation of Escouhas, not at any time to exceed the sum of $10,000 on the whole. The act of mortgage declares that it is to inure to the benefit of any future holder of the obligations to he accepted or indorsed by Lobit & Charpentier, contains the pact de non alienando and stipulates the payment by tlie mortgaged’ of attorney’s fees, if any should he incurred in the enforcement of the agreement entered into between the parties. Tlie note sued upon was transferred by the payees to the plaintiff, who brings this action. Two credits are indorsed on the note, one dated July 13, 1866, for $1500, the other dated June 21, 1867, for $872 31. The defendant filed the plea of prescription, and afterwards an answer containing a general denial. Judgment was rendered in thccourt below in favor of tlie plaintiff for the remainder due on the note, after deducting the credits, with recognition of the mortgage, and decreeing its enforcement against the mortgaged property, and awarding likewise in favor of the plaintiff five per cent, of the amount of the judgment for attorney’s fees. From this judgment the defendant has appealed. There are several grounds of defense taken, hut we deem it unnecessary to examine more than one, that of prescription. It is contended on the part of tlie plaintiff that the act of 1858, excluding, in cases of deceased persons, parol evidence to establish an acknowledgment or promise to pay a debt or liability in order to take such debt or liability out of prescription, has no application to this case, inasmuch as tlie evidence introduced was to prove simply the fact that the maker of tlie note paid on it the amounts credited and thus establish an inter [532] ruption of prescription, and that this is not proving by parol a promise to pay a debt or liability according to the intendment of the act of 1858. When the maker of a note pays a part of its amount we think lie impliedly admits the existence of a debt and his obligation to pay it. Proving, therefore, that a debtor paid a sum credited upon Ms note is, in substance, proving this implied admission or acknowledgment of a debt, and a party is not permitted to prove by parol an acknowledgment of a debt by a person since deceased. We expressed this view in the matter of the succession of Hildebrandt, 21 An. 350, a case presenting the same question that arises in the oné now before us. Wfe think the exception should have been sustained and judgment given in favor of the defendant. It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendant, the plaintiff .and appellee paying costs in both courts.