Walling v. His Creditors , 14 La. Ann. 670 ( 1859 )

Buchanan, J.

The late Samuel Bennett and Mrs. Alexander, filed oppositions to a tableau of distribution in this insolvency. They claimed to he mortgage creditors of the insolvent; the syndic filed an answer to their oppositions, in which he pleads that the contracts were usurious. This plea has been, after full investigation, sustained to a great extent by the District Judge; and the opponents have appealed.

Their counsel relies in this court, principally, upon the argument that the de-fence interposed by the syndic, is equivalent to a revocatory action, and is subject to the rules governing that action, as the prescription of one year, &c.

We do not think this argument well founded. The opposition is a suit to establish a money demand founded upon contracts ; and the syndic has full right to repel such suit or demand, by any legitimate defence, as for instance, usury and want of consideration.

Upon the facts, embracing many and complicated transactions between the insolvent and the opponent Bennett, the elaborate and laborious examination which the District Judge has given them, in his reasons for judgment, have led him to conclusions which appear to us to couform to the evidence in the cause.

We are of opinion, with the Judge a quo, that the different notes and mortgages which figure in the evidence, although executed partly in the name of Samuel Bennett, and partly in the name of Mary D. C. Cane, (Mrs. Alexander,) as payees and mortgagees, were in reality obligations held by Samuel Bennett, arising out of transactions between the insolvent and Bennett, and for the account and behoof of the said Bennett.

There is one particular in which there appears to be error in the judgment of the District Court. No interest is allowed upon the amount ($3,638) for which the succession of Bennett is ordered to he placed upon the tableau of distribution, with right of mortgage taking date from the 6th of September, 1851.

By the terms of the mortgage, the debt, to secure which it is given, bears interest at the rate of eight per cent, per annum.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended ; that the syndic of the creditors of James Walling, place the appellant, Mrs. Alexander, in her capacity of executrix of the last will of Samuel Bennett, as a mortgage creditor, upon the tableau of distribution herein, for the sum of $3,638, with interest at eight per cent, from the 6th of September, 1851, date of the mortgage, until paid; that in other respects, the judgment appealed from be affirmed ; and that the costs of appeal be borne by the mass.

Lane, J., recused himself in this case, being a creditor of the insolvent.