Benjamin v. Cavaroc

WOODS, Circuit Judge. A very learned and elaborate brief has been filed by counsel for defendants who demur, to show that a mortgage like the one referred to in the bill, executed according to the law of Louisiana, is not such a mortgage as is recognized by equity jurisprudence, but is a public act before a notary which imports confession of judgment and that the remedy upon it is 188 statutory and at law, by writ of seizure and sale. There is no question that the mortgage mentioned in the bill was executed to secure a debt evidenced in part by the bonds held by complainant. It was a security for a debt. A suit upon the bonds at law would not give adequate relief because the plaintiff could not in such a suit assert his prior Men over other ordinary judgment creditors. One of the main purposes of the suit is to enforce a Men upon property. This cannot be done by a court of law which simply renders judgment for the amount due plaintiff and leaves him to make his money out of the property of defendant by writ of fieri facias. It is said, however, that the plaintiff has a statutory remedy by seizure and sale, to which he might have resorted. But the court could not have granted an order of seizure and sale in this case, because the writ can only issue where the evidence submitted to the court is authentic and makes full proof of every allegation of the petition. De Brueys v. Freret, 18 La. Ann. 80; Landry v. Landry, 12 La. Ann. 167; Code Pr. art. 732. Complainant holds no such evidence against any of the defendants except Cavaroc. The proof against the others is an agreement under private signature. But the fact that a state legislature has conferred upon the state courts the jurisdiction to enforce equitable rights by a statutory proceeding does not oust the equitable jurisdiction of the United States courts. That cannot be interfered with in any degree by state legislation. Bennett v. Butterworth, 11 How. [52 U. S.] 674, 675; Thompson v. Central Ohio R. Co., 6 Wall. [73 U. S.] 137; In re Broderick’s Will, 21 Wall. [SS U. S.] 520; Noyes v. Willard, [Case No. 10,374.] But it seems that the very question raised by the first ground of demurrer is settled adversely in the case of Walker v. Dreville, 12 Wall. [79 U. S.] 440. That case went up from this court. It was a petition in which complainant set out that defendant was indebted to her in the sum of $5,492, which sum was secured by mortgage, and the prayer was that defendant be condemned to pay the amount so alleged to be due, and that the mortgaged premises be adjudged and decreed to be subject to the payment of said debt, interest and costs. The judgment or decree of the court was in accordance with the prayer of the petition. The case was taken to the supreme court of the United States by writ of error, and the writ of error was there dismissed on the ground that the case belonged to the equity side of the court and should have been brought up by appeal. The second ground of demurrer is want of privity between complainant and defendants who demur. Under the jurisprudence of this state this want of privity would not be an obstacle to a suit in a court of the state to require the defendants to perform a contract made by them for the benefit of a third person not a party to the contract. Code Pr. art. 35. By this article the MabiMty to suit of the person thus contracting is expressly created, and the right to sue is also given to the person for whose benefit the contract is made. In other words, there is an obligation created in favor of the beneficiary of the contract against the person making the contract, although the beneficiary is not a party to the contract. Can this court enforce this Mability? The question seems to be distinctly answered by the supreme court of the United States in the case of In re Broderick’s Will, 21 Wall. [88 U. S.] 520, where the court says: “Whilst it is true that alterations in the jurisdiction of the state courts cannot affect the equitable jurisdiction of the circuit courts of the United States so long as the equitable rights themselves remain, yet an enlargement of equitable rights may be administered by the circuit courts as weH as by the courts of the state. * * * Indeed, much of equitable jurisdiction consists of better and more effective remedies for attaining the rights of parties.” This court has jurisdiction of this case to enforce a lien upon property to which the defendants claim title. They are therefore proper and necessary parties. The court having the defendants properly before it will proceed to do complete justice by enforcing directly against them the MabiMty which they incurred by entering into the contract with Cavaroc or with the sheriff for the benefit of the complainant and others. Demurrer overruled.