Dutrey v. Laguens

Morgan-, J. Plaintiff obtained judgment against the defendant. After the rendition of this judgment the wife of the defendant died, leaving [754] minor children. The defendant became by law their tutor. Execution issued on the judgment, and property was seized. It appears that the recorder of mortgages certifies that there exists on the property seized several mortgages, among them one in favor of the minors. Plaintiff took a rule on the mortgagees to show cause why the mortgages should not bo erased. The defendant, tutor, excepts to the jurisdiction of the Fifth District Court, upon the ground that it is a succession matter, and must be determined by the Second District Court. We think it was not, strictly speaking, a succession matter. It is simply a rule taken in a court out of which an execution issued, to show cause why certain mortgages which stood in the way of the judgment should not be erased. The Fifth District Court, which rendered the judgment, was the proper tribunal to-pass upon all subjects relating to the execution thereof. The second objection, is that the proceeding can not be by rule, but should be by direct action. We think the proceeding by rule was proper.. As regards the mortgages in fav.or of A. Bochereau & Co. and'Jean Taphil, the evidence shows that they have been discharged by payment of the debts which they were given to secure. As regards the minors’ mortgage, the record shows that by the marriage contract between their mother and father the defendant recognized that their mother had brought into marriage furniture amounting to one hundred dollars, and other property, consisting of notes, amounting to $2021, all of which was taken possession of by the defendant, and that the marriage contract was duly recorded on the sixth of October, 1860. The mortgage for those two amounts, therefore, rests in favor of the minors on the defendant’s property. The judgment appealed from, in so far as it regards A. Bochereau & Co. and Jean Taphil, is correct. As regards the minors’ mortgage it is wrong. It is therefore ordered that the judgment be affirmed as to Bochereau & Co. and Jean Taphil, and that as regards the minors’ mortgage it be avoided, annulled, and reversed, defendant to pay the costs in the district court; those of the appeal to be paid by the plaintiff.