Levy v. Fitzpatrick

ERROR to the Circuit Court for the Eastern District of Louisiana. In the circuit court, Edmund and David Fitzpatrick, citizens of the state of Virginia, filed a petition, stating that the plaintiffs in error, Barnett and Eliza Levy, citizens of Louisiana, and resident in the eastern district of Louisiana, were indebted to them, in solido, in the sum of $12,100, with interest, at the rate of ten per cent., until paid, from the second day of February 1838. That on the 26th of March 1838, Barnett Levy, Eliza Levy and one Moses E. Levy (the latter being then a resident in the state of Mississippi, and not within the district of Louisiana) gave their obligation, duly executed by them, to the said Edmund and David Fitzpatrick, binding themselves and each of them, in solido, to pay to them the said sum of $12,100, on the 2d of February 1839, with interest, &c., 'negotiable and payable at the residence of the said Barnett Levy, in the state of Louisiana.' The petition alleged, that a demand of payment of the said obligation had been duly made, at the residence of Barnett Levy, but the obligors had wholly failed to pay the same. The petition stated, that a public act of hypothecation and mortgage, at the time the obligation was given, was executed by M. A. Levy, Barnett Levy and Eliza Levy, by which certain real estate and slaves were given in pledge for the security of the said debt; which was duly recorded in the proper office, in the parish of Madison, in the state of Louisiana. The mortgage was joint, not joint and several. The petition asked that executory process might issue in the premises; and that, after due proceedings, the land and slaves might be sold, to pay the debt and interest due the petitioners, under executory process. The petition also alleged, that the act of hypothecation imported a confession of judgment, and entitled the petitioners to executory process. The bond, and a certified copy of the act of mortgage, were annexed to the petition.

The mortgage, executed by Eliza Levy and Barnett Levy, in their proper persons, and by Barnett Levy, under a power of attorney from M. A. Levy, which was not annexed to nor filed with the mortgage, stipulated, that one third of the debt should be paid on the 2d of February 1839; one-third on the 2d of February 1840; and the residue on the 2d of February 1841; 'and on failure to pay the said note, in the three several instalments, as aforesaid, or any one thereof, at its maturity, they hereby empower and authorize the said Edmund Fitzpatrick and David Fitzpatrick, or either of them, to avail themselves of all the advantages of this special mortgage, and to proceed to seizure and sale of the said lands and slaves hereby mortgaged, by executory process, according to law, for the whole sum of $12,100.'

The Honorable P. K. Lawrence, judge of the circuit court, gave an order for process on the petition, 'as prayed for.' Two of the mortgagors, the defendants in the circuit court, prosecuted this writ of error to the supreme court. The errors assigned in the petition for the writ of error, in the circuit court, were the following: 1st. No oath or affidavit has been made by the creditors, or either of them, that the debt is due upon which the order of seizure and sale has been obtained. See Civil Code of Louisiana, art. 3361. 2d. The power of attorney, if any exists, of Moses A. Levy, one of the defendants, is not attached to the papers, nor filed in this suit, and there is no authentic evidence of it; there is a mere recital of it in the act. 3d. The certified copy of the act of mortgage is not completed, inasmuch as a certified copy of said power of attorney does not accompany it; though said act declares that said power of attorney was attached to it, and is of course an important part of the record. 4th. Though the written obligation may be joint and several, yet the act of mortgage is only joint, and it is indivisible; therefore, it is illegal to proceed by executory process against any one or two of the joint obligators, to the exclusion of the other one or two. 5th. The proceedings generally are irregular and illegal, and cannot be sustained. Lastly, that no presentment or demand of payment of the note or obligation sued upon was made before the commencement of this suit, at the place where the same was made payable, and that no protest or other evidence of such demand is exhibited.

The case was submitted on the part of the plaintiffs in error, by Garland, on a printed argument; and was argued at the bar, by Coxe, for the defendant. The decision of the court having been given on a point not presented by the assignment of errors, or in the arguments of the counsel, the arguments are omitted.

McKINLEY, Justice, delivered the opinion of the court.