Langley v. J. H. Burrows & Co. , 15 La. Ann. 392 ( 1860 )

Düffel, J.

The plaintiff obtained an order of seizure and sale, of real property situated in New Orleans, on the following documents, to-wit: 1st, a note of $5000, subscribed by the defendants in Cincinnati, November 22d. 1854, payable one year after date to the order of Lemuel J. Webster, at his office in the city of New Orleans, with interest from date at six per cent., and endorsed “ without recourse pay to the order of Langley & Kinkead (signed) L. J. Webster ; ” 2d, a deed of mortgage, in the common law form, executed on the same day, 22d November, 1854, by said defendants, in favor of said Webster, his heirs and assigns, to secure the above note, which is fully described in the deed; 3d, the following act of transfer from L. J. Webster : “ For value received from Lewis W. Langley' and /. D. Kinkead, partners doing business under the firm and style of Langley & Kinkead, I hereby assign and transfer to them all my right, title and interest in and under the foregoing mortgage, and in and to the property therein described, and in the debt designed to be secured thereby; but the assignment and transfer are made expressly without recourse to me in any event.” Tho mortgage act is signed by the mortgagors and two witnesses, and the act of assignment is signed by the transferrer and two witnesses; and both acts were acknowledged before the Commissioner of the State of Louisiana in tho State of Ohio; said Commissioner being at the same time one of the subscribing witnesses to the original acts. The acknowledgments are simply attested by the signature of the Commissioner, or in other words, the acts were signed and acknowledged before one witness and the Commissioner. The defendants, who are non-residents, are represented by a curator ad hoc; he took a rule on tho plaintiffs to show cause why the order of seizure and sale should not be set aside and annulled, and tho petition dismissed, among other reasons, because the documents under which the writ issued are not in an authentic form.

The District Judge overruled the motion.

It is contended by the plaintiffs that the acts accompanying the petition for the seizure and sale are authentic acts, and were so declared by an Act of the Legislature approved March 9th, 1855, p. 44, entitled “ An Act to provide for the taking of testimony, the acknowledgment of deeds, &c.,” which act is a reenactment of the Acts of 1838, p. 55, and 1840, p. 80 ; and also that the curator is not in law authorized to take an appeal. The right of appeal cannot be seriously questioned. Bach v. Ballard et al., 13 An. 487; 12 R. 457.

As to tho first point, the 2d section of the Act of 1855 authorizes Commissioners, appointed in other States by the Governor of tho State of Louisiana, to take the acknowledgment and proof of any deed, mortgage, &c.; and the 8th section gives to all acts thus acknowledged the force and effect of authentic acts executed in this State. Thus we may conclude, that those Commissioners are, by express provision of the law, vested with all the powers of our Justices of the Peace and Notaries; and asan authentic act of sale, mortgage, assignment, &c., is an instrument executed, or acknowledged, before a Notary and two witnesses, it necessarily follows, that the documents produced by the plaintiffs are acts under private signature, and, therefore, insufficient to authorize an order of seizure and sale. C. P. Arts. 732 and 733.

It is, therefore, ordered, that the judgment of the District Court bo reversed; and it is further ordered, adjudged and decreed, that the order of seizure and sale heroin issued by the District Judge bo set aside and annulled, and that tho petition of the plaintiffs be dismissed, at their costs in both courts.

Land, J., absent.