Gauche v. Gerdes , 10 Teiss. 56 ( 1912 )

His Honor,

JOHN ST. PAUL,

rendered the opinion and decree of the Court as follows:

Anthony J. Rossi appeals from a judgment condemning him personally for the amount of a certain mortgage bearing on property of which he afterwards became the purchaser.

The theory on which -is sought .to hold him liable is that in acquiring the property he assumed the mortgage rest--ing upon it.

But the act of purchase nowhere recites that the appellant assumed or promised to pay such mortgage, or in any way bound himself personally for the amount thereof. Appellant simply purchased the property subject to the mortgage, and hence he is in no manner personally liable for the debt, but the property itself remains none the less liable for the amount of the mortgage debt and all its accessories and incidents.'

The plea of prescription herein filed was evidently based on a misapprehension of fact. The evidence shows that the notes herein sued-upon were never allowed, to lapse by prescription, bnt on the contrary were renewed and extended from time to time within the prescriptive period, and thus kept in full force up to the time of filing this suit.

Opinion and decree, November 11th, 1912. Rehearing granted, December 9th, 1912.

It is therefore ordered that in so far as the judgment appealed from condemns the appellant, Anthony J. Rossi, personally for the amount here sued for, the same is annulled, avoided and reversed, and plaintiff’s demand for a personal judgment against him is rejected.

It is further ordered that in so far as the'same recog-' nizes the mortgage upon the property purchased by appellant, and the right of plaintiff to execute upon said property the judgment herein obtained against the other defendant, Albert Gerdes, the same is hereby affirmed.

It is further ordered that the costs of appeal be borne by the plaintiff Joseph A. Gauche. '

Reversed in part, affirmed in part.

No. 5643.

Joseph A. Gauche vs. Albert Gerdes, et als.