Marionneaux v. Dardenne , 28 La. Ann. 457 ( 1876 )

Ludelestg, C. J.

This is an appeal from an order of seizure and salo. It has been often decided by this court that the only question which can be raised in such an appeal is whether the evidence authorized the fiat of the judge. Was the judge a guo authorized to grant the order of seizure and sale in this case ? .

The plaintiff represents that she is the-natural tutrix of tlio minor heir of her husband, in whose favor the mortgage was executed by the defendant, and she prays for an order of seizure and sale, etc. Accompanying the petition is an authentic act of mortgage in favor of the father ■of the minor aforesaid, and the .obligation of the defendant secured by the mortgage, which is not indorsed.

The Code of Practice declares that “ executory process can only be re-’ Sorted to in the following cases: when tho creditor’s right arises from an act importing a confession of judgment, and which contains a. privilege or mortgage in his favor.” 732. “ An act is said to import a confession of judgment in matters of privilege and mortgage when it is passed before a notary public, or other officer fulfilling the same functions, in the presence of two witnesses, and tho debtor has declared or acknowledged tho debt for which he gives the privilege or mortgage.” 733. “When the creditor is possessed of such an act, ho may proceed against his debtor or his heirs, by causing the property subject to the privilege or mortgage to bo seized and sold on a simple petition,” etc. 734.

Thus it appears that the authentic proof which authorizes the fiat of tho judge a quo is the act importing a confession of judgment, and when the application is made to foreclose in tho name of the creditor or his heirs or succession, only this proof is required to authorize the erder. The law does not require any other proof, and wo can not perceive an]'good reason why any other proof should be required. Surely tho defendant will bo protected if he pays the debt, but should there be any possible objection to permitting tho plaintiff from proceeding to collect tho debt, the objection should be urged in an injunction suit, and not in an appeal from the order of seizure and sale.

It is therefore ordered that the judgment bo affirmed with costs of appeal.

Rehearing refused.