Rice v. Davis ( 1859 )

Merrick, O. J.

This appeal is taken from an order of seizure and sale.

The plaintiff alleges himself to be the curator of the succession of Gardner Johnson, deceased, rvho became in his lifetime the owner and holder of the note annexed to the petition.

It is assigned as error, that there is in the record no authentic proof that Gardner Johnson is dead, nor that plaintiff has been appointed curator of his succession.

The note sued on was made payable to the defendant’s own order and by him indorsed. This fact appears by the notarial and authentic act of mortgage. In the act of mortgage, the defendant hypothecated the property to secure the party {John R. Clay) who lent the money, or any other holder.

The plaintiff is the holder of the note, and his description of himself as curator of Johnson’s succession may be regarded as a descriftio personae. ' In this particular, the case cannot be distinguished from the case of Montgomery, Ex’r., v. Nott, 2 An. 216.

The right of the holder of a note and mortgage in this form, to recover without authentic evidence of transfer further than that furnished by the act itself,has become a rule for the security of obligations, which, having been acted upon for the last three years, cannot now be disturbed. See Mothé v. McCrystal, 11 An. 4 ; Race & Foster v. Bruen, ibid 34.

The case of Landry v. Landry, 12 An. 167, differs from the present in the form of the mortgage and note.

Judgment affirmed.