Vial v. Moll

The opinion of the Court was delivered by Bermudez, C. J. The plaintiff' appeals from a judgment of non suit dissolving- an injunction taken by him, without bond, against executory process issued on three notes of his, against property said to have been mortgaged to secure their payment. The substantial averments of his petition are: that one of the two notes, older in date, was issued without consideration and that the last note issued, thirdly described in the petition, was uttered and secured by mortgage, on a promise of the holder of the two notes to grant time for the. payment of the debt, and to make advances for the, cultivation of the land mortgaged to secure the notes. The injunction was asked and was granted' without bond. Shortly after, the plaintiff in executory process, charging that the injunction had illegally issued without bond, and that the allegations of the petition were false, took a rule for the dissolution of the writ. On the day of trial of the rule, the mover therein died an exception to the right of the mortgager to an injunction without bond, and, under reserve of this exception, pleaded the general issue, averring, however, his claim and mortgage. The exception was overruled. Plaintiff in injunction then offered oral testimony in support of his averment. On objection, the testimony was ruled out and bills were reserved. The testimony was offered to show : 1. That one of the two notes older in date had issued without consideration. 2. That the consideration of the last described note, was an extension of time; and 3. That the consideration of the mortgage was a promise to furnish supplies, the complaint being- that, in violation of the understanding between the parties, neither was the time granted, nor the supplies furnished. [205] Objection was made to the admission of this testimony to establish want of consideration of the note first mentioned, on the ground that, even if the fact were true, it did not authorize an injunction without bond, and that this defense was in conflict with, and waived by, subsequent averments of the petition, which admits the validity of the debt evidenced by that note, and is based on an agreement alleged to have been made anterior to the date of the mortgage act. Objection was also made to the hearing of oral proof to support the second and third grounds of complaint in the injunction, on the ground that it would contradict, vary, or enlarge the authentic act, in which the consideration of the note and of the mortgage is, without the least ambiguity, expressly declared to be the indebtedness of the drawer and mortgager for value received in advances for the previous year. The plaintiff in injunction contends that the objections should have been made, either in a rule to dissolve, or by objection, at the time of trial, to the reception of the testimony. This is precisely what was done by the defendant in injunction. He not only took the rule, but also objected when the offers were made, to the reception of the oral testimony. He, besides, filed an exception, which, like the rule, objects to the legality of the injunction without bond. He has further eventually put the averments of the petition at issue by denying them. We are, therefore, at a loss to perceive the force of the contention, even if the proposition advanced bo a correct-one. After creditably admitting here that he had no right to inject into his petition for an injunction, without bond, a ground (want of consideration) not enumerated among those specified in Art. 739, (J. P., which authorize an injunction without security; and that the ruling excluding testimony to establish it is correct, the plaintiff in injunction insists nevertheless, that he had a right to introduce the oral proof, to show that the consideration of the third note and of the mortgage securing it was not only money, but also time and supplies. His counsel refers the court to several authorities.with a view to establish that oral testimony has been judicially allowed, to show facts at variance with declarations made in authentic acts, in kindred instances. The rulings invoked were made, either in cases in which the. act was silent on the question of consideration, or in cases in which error, fraud, ambiguity, or some other cause bad been alleged, or in which third parties were the movers. They surely do not apply to suits in which such features are not prevented—which is the case in the instant controversy. [206] Oil the trial, a question was put to a witness to ascertain whether the mortgagee had, ai am/ time, granted time for the payment of the debt; but, on objection, the question was not allowed to be answered. Thp reason for this ruling was, that the averments of the petition showed that the promise, if any was ever made, was anterior to the date of execution of the last act of mortgage which distinctly states that the consideration of the mortgage was the indebtedness of the mortgager as evidenced by the note last described, and which had been issued for value received in advances of the previous year. Had a vitiating charge been made, or one alleging an ambiguity in the act, over even that since the execution of the mortgage last consented, time liad been granted, a different case would have been presented. The portion of the article-of the Code of Practice (739) which provides that the debtor can arrest the sale, where time has been granted to him, although this circumstance he not mentioned in the contract, can havé no reference to time granted before, and can only mean time granted after the date of the contract. It allows this defense, although no'provision was made in the contract, for the obvious reason, that the granting of time was a new contract subsequently entered into, of which proof is admissible, notwithstanding what may he contained in Article 2276 of the R. C. C. which prohibits the admission of parol evidence, not only against or beyond what is contained in the act, nor ou what may have been said before, or at the time of making them, or since. The oral testimony offered was evidently desigued, if not to contradict, at least to vary and enlarge the declarations of the authentic act, touching the consideration of the mortgage given. If it was not tendered to add to, or take from, the act, what was it offered for? It clearly had not for its sole object, if that, to confirm the declarations of the act, for that would have been a superfluity possibly injurious to the debtor. It was palpably intended to inject into the act ■what is not found in its context, and what is claimed should have been incorporated into it. Confronted with the express declaration of what the consideration of the notes and of the mortgage was, and in the abseuce of any averment justifying an inquiry behind the act into anterior or contemporaneous matters, or to establish a new contract for delay in payment, subsequent thereto, we think the testimony was properly ruled out. The act is at least prima facie binding on the parties, and its effect [207] must conclude them, unless it be destroyed or impaired by written ev ifieuce or by testimony admitted, under a vitiating special averment as already stated, or under a different statement of rights. It is needless to indulge into any extended argument or quote specifically many authorities in support of such plain proposition of law. A general reference to fountain heads is all that is required. R. C. C. 2276; C. P.,739; Hen. Dig. 534, 536, 538, 540; Lou. Dig. 251; Greenleaf vol. 1, secs. 275, 277, 281, 283. By this litigation, which was inaugurated on February 29, 1884, the plaintiff has reaped the benefit of the contract which he says had been agreed to, viz: tkne, in other words, a suspension of the sale of his property, until the end of the year 1884, which has now fully gone by. Judgment affirmed. Rehearing refused.