Sample v. Elliott
Sample v. Elliott
Opinion of the Court
This is an appeal from a judgment dissolving an injunction for want of a cause of action.
In the petition of intervention six supposed causes of action were stated.
The first cause of action stated, as a ground for injunction, was that the mortgagor, Elliott, had been adjudged a bankrupt, and the second allegation, as a ground for injunction, was that the bankruptcy proceedings had annulled the confession of judgment in the act of sale and mortgage.
It was not alleged that the act of sale and mortgage was made within the four months preceding the alleged bankruptcy of Elliott, or that the mortgage was not given in good faith, or that it was not given for full value received at the time it was given.
The Bankrupt Law, the Act of July 1, 1898, c. 541, § 68, par. (d) (U. S. Comp. St. § 9651), declares that liens given in good faith and not in contemplation or in fraud of the act, and given for a consideration received at the time, and properly recorded, if recording be necessary to impart notice, shall, to the extent of such consideration; only, be not affected by the act.
The third allegation of the intervener was that the order of seizure and sale directed the sheriff to collect more than the sum due to the plaintiff, Sample. The record showed, that the allegation was not. true. The order and writ of seizure and sale directed the sheriff to collect the amount claimed in the petition, $21,000, with interest at 7 per cent, per annum from the 2d of March, 1921, the interest having been paid to that date, and 10 per cent, attorney’s fees—all according to the two mortgage notes annexed to the petition. It was conceded and alleged in the sixth paragraph of the intervener’s petition for injunction that the plaintiff was entitled to interest on the notes from the 2d of March, 1921, “all interest having been paid to that date.”
“Whenever a sheriff shall seize, under process from any court of justice, any tract of land situated in part in two or more parishes, it shall be lawful for him to execute the process upon the whole tract; in such cases the sheriff shall give the legal notices of the sale in each of the parishes into which it may extend. The deed of sale shall be recorded in each of the parishes.”
The judgment is affirmed at appellant’s cost.
Ante, p. 938.
Reference
- Full Case Name
- SAMPLE v. ELLIOTT. Intervention of SUFFERN
- Cited By
- 8 cases
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- Published
- Syllabus
- (Syllabus by Editorial Staff.) 1. Mortgages &wkey;j27l, 427(4) — Under pact de non alienando a mortgagee may disregard subsequent sale and foreclose against mortgagor alone. Where an act of sale, in which 'a mortgage and vendor’s lien were reserved, stipulated that the buyer should not mortgage or sell, or otherwise dispose of, the property to the prejudice of the vendor’s lien or mortgage, the mortgagee by virtue thereof had the right to disregard a subsequent sale made by the mortgagor and could foreclose against the mortgagor alone. 2. Bankruptcy That mortgagor had been adjudged a bankrupt did not affect a purchase-money mortgage reserved in a deed to the land; such deed having been properly recorded,' and Bankruptcy Act July 1, 1898, § 68, par. (d) (U. S. Comp. St. § 9651), declaring that good faith liens for consideration, properly recorded shall, to the extent of consideration only, be not affected by the act. 3.Mortgages 504 — Foreclosure sale could not be restrained because of insufficiency of description in sheriff’s advertisement. That in a foreclosure suit the description of the land in the sheriff’s advertisement of sale was so defective that the land could not have been identified by it did not justify stopping the sale by injunction on application of one purchasing from mortgagor, the mortgagee having reserved a pact de non alienando in the act of sale. \\ 4i Mortgages &wkey;>507 — Sheriff may sell under foreclosure lands situated in two parishes. Under Rev. St. § 3403, a sheriff may legally seize and sell at foreclosure sale a tract of land situated partly in his parish and partly in another parish. 5. Mortgages 504-iForeclosure sale could not be restrained because of mistake as to interest in writ of seizure and sale. Where, in foreclosure of a mortgage given under an act of sale containing a pact de non alienando, a subsequent purchaser from the mortgagor intervened and attempted to restrain the foreclosure sale, that the writ of seizure and sale by mistake' called for collection of interest from the date of the mortgage notes, instead of from the date to which interest had been paid, did not justify an injunction.