Hendry v. Nicolosi

On Application for Rehearing

PER CURIAM.

The application for rehearing filed herein on behalf of plaintiff, M. H. Hendry, complains of our refusal to recognize that the ruling in Gumpert v. Signal et al., 180 La. 59, 156 So. 174, 175, is decisive of the case at bar. In this connection learned counsel maintains that the order in the instant case authorizing the tutrix to> “execute all instruments necessary and incidental, including the encumbering of the property” has the same efficacy as the words “with all usual security clauses” employed in the Gumpert case, supra.

As pointed out in our original decree herein, the words “with all usual security clauses” found in the Gumpert case, supra, were held to include authority to waive appraisement, confess judgment and sign a pact de non alienando, all of which are so generally found in conventional mortgages that courts may take judicial cognizance that said provisions are usual security clauses in mortgages. However, to “execute all instruments necessary and incidental, including the encumbering of the property” as authorized in the case at bar refers to the nature of the instruments such as a note to represent the indebtedness and a mortgage to secure same, not to the specific provisions therein which may be agreed upon between the mortgagor and mortgagee. The tutrix in the instant case being without authority to confess judgment, waive appraisement or to sign a pact de non alienando, the foreclosure by executory process was null and void as to the undivided interest of the minor children of defendant Lena Nicolosi.

Counsel for plaintiff is correct in his contention that the judgment of the trial court should be reversed only as to the undivided %2ths interest of the minor heirs and affirmed as to Mrs. Nicolosi and Angelina Nicolosi Jones since said parties, being of lawful age, were bound by the terms of the mortgage as signed by them.

For the reasons hereinabove set forth, our original judgment is amended and revised to read as follows:

The judgment of the trial court rendered May 23, 1960, read and signed May 27, 1960, is affirmed insofar as it orders the eviction of defendants, Mrs. Lena Nicolosi and Angelina Nicolosi Jones, and reversed insofar as it decrees the eviction of the minors, Luke Nicolosi, III, Beatrice Nicolosi, Leon Nicolosi, Lena Nicolosi and Corrine Nicolo-si.

Affirmed in part, reversed in part, and rendered.

Rehearing denied.

ELLIS, J., recused.