Stockmeyer v. Tobin

This suit was instituted January 27, 1886, in the name of Edward F. Stockmeyer, an interdict, and a subject of the German empire, residing in New Orleans, by his curator, Carl Stockmeyer, a subject of the same empire, residing in that city, against Charles P. McCan, Henry Godberry, George Godberry, Laura Godberry, Noelie Godberry, and Edward F. Le Bourgeois, citizens of Louisiana. Upon final hearing the bill was dismissed, with costs.

Its principal object is to obtain a decree setting aside and declaring of no effect a sale and adjudication in the year 1885 to Charles P. McCan of a certain plantation in Louisiana, with all the buildings, improvements, and houses thereon, and sundry articles of personal property used in its cultivation, and establishing the rights and interests secured to Edward F. Stockmeyer by certain pledges made by public acts in the years 1881 and 1884. A further object is a decree declaring McCan a trustee in respect to the moneys realized by him from the sale of property taken possession of under the above adjudication.

The grounds upon which the above relief is sought will appear from the following summary of the pleadings and evidence:

On the 7th of February, 1881, by public act before a notary, the defendants Laura Godberry and Noelie Godberry pledged to Stockmeyer, his heirs and assigns, two promissory notes made by Henry Godberry and George Godberry to their own order, and by them indorsed, dated February 20, 1880, each for the sum of $8,750, payable one year after date, with interest at the rate of 6 per cent. per annum from date until paid, with privilege to the makers of extending the notes from year to year upon payment of interest. These notes were secued by mortgage and vendor's privilege, given February 20, 1880, on a sugar plantation known as the 'Angelina Plantation' in the parish of St. John the Baptist, state of Louisiana, about 48 miles above the city of New Orleans, on the Mississippi river.

On the 25th of January, 1884, Laura Godberry and Noelie Godberry, by public act, and for the purpose of securing an indebtedness from Henry and George Godberry in the sum of $32,000, with interest at 8 per cent. per annum from February 24, 1884, until paid, and attorney's fees at 5 per cent. on the amount sued for, pledged to said Stockmeyer the above two promissory notes. By this act it was agreed between Laura and Noelie Godberry and Stockmeyer that, in the event Henry and George Godberry failed to pay this indebtedness, with interest and costs, on or before January 25, 1885, Stockmeyer, his heirs and assigns, might take such legal proceedings as were deemed necessary to enforce the payment of the notes pledged, and appropriate the proceeds of sale to the payment of any amount due him on account of the Angelina plantation. The interest was paid to February 21, 1884, and payment of the notes was postponed to January 25, 1885. The land and property embraced in this special mortgage and vendor's privilege was the Angelina plantation, with the buildings, improvements, machinery, engines, apparatus, carts, wagons, tools, implements of husbandry, mules and other live-stock, corn, fodder, growing crops, and everything, without exception or reservation, belonging or appertaining to that plantation.

On the same day of the last-named act, January 25, 1884, by public act, to which Henry Godberry, George Godberry, Laura Godberry, Noelie Godberry, Edward F. Stockmeyer, and Charles P. McCan were parties, certain notes for $25,000, made in solido by Henry Godberry and George Godberry to their own order, and by them indorsed, divided into sums of $5,000 each, and payable at the New Orleans National Bank on the 15th, 20th, and 27th days of December, 1884, and on the 5th and 15th days of January, 1885, respectively, with interest at 6 per cent. per annum after maturity, were secured by special mortgage and crop lien on the Angelina plantation and the personal property belonging thereto, as an entirety, in favor of McCan. This mortgage, by its terms, was made superior to the one of the same date securing the indebtedness of Henry and George Godberry to Stockmeyer, as well as to that of February 20, 1880, securing the two notes of $8,750 each, held by the Misses Godberry.

Subsequently, by a decree passed November 11, 1884, in the civil district court of the parish of New Orleans, Stockmeyer was adjudged to be incompetent to perform validily any act that could be performed by a person of sane mind. He was accordingly interdicted, and Carl Stockmeyer was appointed and qualified as his curator.

Upon default in the payment of one or more of these notes, McCan, the holder and owner of them, proceeded, February 25, 1886, by executory process in the twenty-sixth judicial district court, parish of St. John the Baptist, in suit No. 197 on the docket of that court, in which Henry Godberry and George Godberry were sole defendants, to seize the tract of land or plantation, together with all the personal property covered by the special mortgage to him, and attached to and used in the cultivation of such plantation. At the sale ordered in that suit-which took place on the 7th of March, 1885, at the seat of justice of the parish-the plantation, with the personal property covered by the special mortgage and crop lien, and used in its cultivation, was adjudicated to Charles P. McCan for the price of $15,000 cash, and a deed was made to him by the sheriff. Under that deed he entered into possession, and sold the mules and machinery in the sugar-house on the plantation for a sum approximating $10,000. He subsequently leased the plantation for the year 1885 to Edward Le Bourgeois for the sum of $5,000, which sum he collected. He again leased it to Le Bourgeois for two yers from January 1, 1886, for $10,000, and the latter, at the beginning of this suit, was in possession as lessee and tenant under McCan, whose title rested entirely on the above adjudication and deed to him.

Before the sale to McCan was made the defendants in suit No. 197 presented to the judge of the twenty-second judicial district of Louisiana a petition protesting against the sale of the personal property in block or in lump at the court-house, and demanding that it be appraised and sold separately on the plantation. This petition was accompanied by an affidavit of counsel, stating that the office of judge of the twenty-sixth judicial district court of Louisiana was vacant; that there was no judge in that district or parish to act in said office; and that the judge of the adjoining district-the twenty-second-was authorized in that event to act. Thereupon the latter judge made at chambers, on the 4th of March, 1885, the following order: 'Upon reading the foregoing petition, and considering articles 666 and 676 of the Code of Practice, let the sheriff of the parish of St. John the Baptist be, and he is hereby, directed and instructed to sell the property described in the foregoing petition in the order and manner therein set forth; and let the same be sold separately and appraised separately, as above set forth and prayed in said petition; the plantation to be sold first at the court-house, and the other articles on the plantation, as above prayed for.' This petition, with the accompanying affidavit, and the above order, were filed in the suit, and of the order the sheriff was notified on the 5th of March, 1885. In addition, the curator of Stockmeyer, by a writing filed March 6, 1885, in said suit No. 197, protested against the sale of the property without the benefit of appraisement as prescribed by law, and in the mode claimed by Henry and George Godberry. Nevertheless the property was sold at the court-house door, in block, without appraisement; by reason whereof it is alleged the sale did not realize a fair value, persons who would have been present and bid for the property being prevented from attending on account of the mode in which the sale was conducted. The act of special mortgage and crop lien of January 25, 1884, by Henry Godberry and George Godberry for the benefit of McCan, contained, among others, provisions dispensing with the appraisement of the property enumerated in the event of seizure and sale; waiving all delays, appeals, writs of error, and right of appeal; authorizing the holder of the notes to enter judgment in any court of competent jurisdiction, without citation or previous notice, on a production of an authentic copy of the act for the whole or part of said debts, attorneys' fees, costs, charges, expenses, etc., provided execution was stayed until the maturity of the notes sued on; in case a forced sale became necessary from any cause, waiving and acknowledging legal service of notice to pay, notice of seizure, and notice to appoint an appraiser and to subdivide, as well as all legal delays; consenting to the immediate execution of any judgment entered; promising that no injunction or process of law tending to delay a sale should be resorted to by them, or by any one holding under them, such right or privilege being expressly renounced; consenting that all laws of the state pertaining to privileges for supplies furnished or money advanced and used in the purchase of necessary supplies, and in the payment of necessary expenses, laborers, etc., to carry on a farm or plantation should have full force and effect; and obligating themselves to ship and consign to the mortgagee the entire crop of sugar and molasses made and gathered on the Angelina plantation during the year 1884, or his representative and assigns could at once sequester the crops or the proceeds thereof in whosesoever hands the same might be, regardless of any sale or transfer thereof, and ship the same, if in kind, to McCan, who was empowered to sell them at the current market prices, and hold the net proceeds in lieu of the rop erty sequestered.

These stipulations in the special act of mortgage and crop lien were alleged to be illegal, and not binding upon Henry and George Godberry, or through them upon any creditor or junior mortgagee, particularly the plaintiff or said interdict, even if the latter was adjudged to have lawfully signed it, which the plaintiff denied.

The bill avers that the defendants Laura and Noelie Godberry, at the date of the above act, January 25, 1884, were not the holders and owners of the two promissory notes for $8,750 each, but that they had been pledged to Stockmeyer, first by the act of February 7, 1881, and again by the act of January 25, 1884, and that he held a special property in them to secure his debt; that the special act of mortgage and crop lien of the latter date was not intended to subordinate the pledge of Stockmeyer to the claim and notes of McCan, and could not properly be so interpreted; that there was no consideration for Stockmeyer to subordinate his right of pledge to the special mortgage and crop lien of McCan; that at that time, January 25, 1884, Stockmeyer 'was losing, and to a large extent had lost, his capacity to attend to business and to manage his affairs; that his mind was seriously impaired so as to affect his understanding and judgment, and he so continued until in the month of November, 1884,' on the 11th day of which month he 'was judicially interdicted, but on or about the 20th day of February, 1884, previous thereto, was placed in an asylum;' that 'said act was not the expression of a sound mind, and is illegal and void, and not binding on Stockmeyer, his heirs or assigns, and that the proceeding to seize and sell the property therein enumerated was illegal, void, and of no effect' as to his rights or the rights of his curator; that if the special mortgage be illegal and void as against him, the pledges, one or both, made by Laura Godberry and Noelie Godberry on the 7th of February, 1881, and January 25, 1884, were subsisting pledges and first mortgages and privileges on said property; and that the debts due to Stockmeyer should be first paid from the proceeds of the sale of the property pledged.

The prayer of the bill is that the sale and adjudication of the Angelina plantation, as well as said act of special mortgage and crop lien in favor of McCan, be canceled and declared null and void; that the pledges, by the act of February 7, 1881, and January 25, 1884, be recognized and established, and the property so pledged be sold; that the debts due Stockmeyer from Henry and George Godberry be ascertained; that McCan be adjudged to be a trustee for the moneys realized by him from the sale and adjudication of March 7, 1885; and that such further relief be granted as the nature of the case requires.

The answer of McCan proceeds upon these grounds: That the two acts of January 25, 1884, were executed at the same time, and for a common purpose; that prior to that date, Stockmeyer made advances to the amount of $32,000 to Henry and George Godberry to enable them to carry on the Angelina plantation; that said debtors, being unable to repay said sum, and there being no prospect of their being able to do so unless the sum necessary was made out of future crops, applied to defendant some days before January 25, 1884, for a loan of $25,000 to be used in purchasing supplies for that year, and to be secured by a first mortgage; that Stockmeyer knew of and approved of that application, for he intervened in the act of special mortgage and crop lien, without solicitation from the defendant, and bound himself to the stipulations contained in it; that defendant refused to make the loan unless the holders and owners of the two notes of $8,750 each, which were outstanding and secured by first mortgage on the plantation, would consent to give his mortgage priority over them; that by said stipulation the plaintiff postponed his rights of mortgage in favor of the defendant; that the protest and petition filed by the curator in case No. 197 shows that Stockmeyer becamea p arty to the act of mortgage and crop lien for the purpose of waiving his claim as holder of said two notes; that prior to, as well as on, the 25th of January, 1884, he was engaged in and transacted business in New Orleans, apparently in the full enjoyment and use of all his mental faculties, and defendant had no reason to believe that they were in any degree impaired by insanity, or from any other cause; that the defendant has no knowledge or information as to his having lost his capacity to attend to business and manage his affairs, or as to whether his mind was seriously impaired, so as to affect his understanding and judgment; that defendant was not intimate with him, having had only casual intercourse with him, but from the fact of his attending to business he believed him to be in his right mind when the mortgage and crop lien were executed; that on or about September 27, 1884, his curator agreed and consented to defendant's making further advances to the plantation over and above the $25,000 secured by the special mortgage of January 25, 1884; that no infirmity of intellect upon the part of Stockmeyer was suggested by the curator in the petition and protest filed to prevent the sale of the mortgaged property; and that, if the curator had given notice of his purpose to repudiate the stipulation in the act of special mortgage on the grounds now urged, the defendant would not have made the advances he did, nor would he have sold the property in dispute if the claims now put forward had been made known to him.

The answer also alleges that the sale of the mortgaged property by the shcriff under executory process was in all respects legal and valid; that it was competent for the mortgagors to make the waivers embodied in the mortgage, and, the mortgage having been signed, he consented to its terms and conditions, and is bound by them; that the mules and other personal property covered by the special mortgage, and not sold on the plantation, were used in the cultivation of the plantation, were attached thereto, and were immovable by destination; that the sheriff had advertised the same, together with the plantation of which they formed a part, for sale, according to law, at the seat of justice of the parish; that the petition and protest of the plaintiff, who was joined therein by Laura Godberry and Noelie Godberry, were filed long after the seizure and date of the first publication of the notices of sale, and was not a demand for a sale of the seized property, or any part thereof, on the premises, but, if it be so construed, it was made after the right to the same had expired, and not by the defendants in the writ, and the sheriff was not bound to comply with any such notices; that it would have been irregular and illegal to have sold a part of the property at a place different from that named in the notice of sale; that the protest was presented to the defendant on the day, and only a few minutes before the time, advertised for the sale; that, as the plantation was on the opposite side of the river, 10 miles from the seat of justice, the plaintiff knew that compliance with the protest was impossible; that the judge who granted the order directing the sheriff to sell according to the terms of the protest had no power to grant the same; that the petition upon which it was granted did not pray for process against the sheriff or the defendant, nor has any been issued or served, and the suit has not been prosecuted in any manner to final judgment; that such order decided nothing between the defendant and the complainant that ought to affect the sale; that the plantation, mules, machinery, and implements thereon constituted an estate complete for the purpose of cultivating sugar-cane and manufacturing its products, and it was more valuable as a whole than it would have been if sold separately in the manner set forth in the protest; that the amount due him on the day of sale for advances was $20,707.39, with legal interest from January 10, 1885, but that the property was sold for only $15,000, levin g a large balance due him, which remains unpaid, together with accrued interest.

The defendant admits that he received from Le Bourgeois $4,000 for the rent of the property for the year 1885; that he has rented for two years from January 1, 1886, at $5,000 per annum; and that he has given Le Bourgeois the privilege of purchasing at the expiration of his lease for $15,000 payable in installments. After the answer was filed, both Edward F. Stockmeyer and McCan died, and the suit was revived in the name of C. Stockmeyer, testamentary executor of E. F. Stockmeyer, against the appellees, the widow and children of McCan. Upon final hearing the bill was dismissed, with costs.

A. Goldthwaite, for appellant.

J. D. Rouse and ''Wm. Grant'', for appellees.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.