This is a suit to enjoin the foreclosure of a mortgage against the succession of the debtor on the ground that the mortgage note on its face is prescribed.
On March 2, 1934, Mrs. Matilda B. Gibson, widow of John Lewis, died intestate, leaving an estate consisting of two pieces of real estate situated in the city of New Orleans, one located at 2415 Palmyra street, appraised at $1,200, and one on Jane alley, appraised at $800. Two mortgages were executed by her bearing on the Palmyra street property, one to secure a note for the sum of $1,200, dated December 30, 1926, and the other to secure a note for the sum of $500, dated September 14, 1928. Both notes were in favor of Mrs. Martha M. Reed and were made payable *Page 829 three years after date, with stipulations for interest, attorney's fees, etc.
On April 17, 1934, Robert A. Lewis and Mrs. Lenora Lewis, wife of Louis J. Prosper, alleging that they were the sole and only heirs at law of their late mother, Matilda B. Gibson, widow of John Lewis, filed suit against Mrs. Martha M. Reed to have declared null and void the two mortgages, on the ground that they were made without consideration and for the sole purpose of fraudulently depriving them of their legitime. After due trial on these issues, the trial judge dismissed the case. From that judgment no appeal was taken, but two days later, on the 5th day of April, 1935, Robert A. Lewis and Mrs. Lenora Lewis, wife of Louis J. Prosper, opened the succession of their mother by petitioning the court to have Robert A. Lewis appointed administrator of the succession. Robert A. Lewis qualified as administrator of his mother's succession on August 19, 1935.
On the 10th day of October, 1935, Mrs. Martha M. Reed, the payee and holder of the two mortgage notes, instituted foreclosure proceedings on the $1,200 mortgage note, but before the property was advertised for sale, the succession, through its administrator, filed this suit to enjoin the sale on the ground that the note foreclosed upon was prescribed. In answer to the rule nisi which issued in the case, Mrs. Martha M. Reed, respondent herein, set up that the prescription on the note foreclosed upon had been interrupted for the following reasons: First, that the note had been acknowledged by the maker; second, that certain specific sums had been paid on the *Page 830 note; and third, that the suit instituted on the 17th of April, 1934, by Robert A. Lewis and his sister, Mrs. Louis J. Prosper, to have the two mortgages annulled and set aside, also interrupted prescription.
The trial judge, after a hearing on these issues, declined to grant the preliminary injunction, but the effect of his ruling was reversed by us in our opinion and decree rendered on June 30, 1936.
The matter is now before us for consideration on rehearing.
Counsel for Mrs. Martha M. Reed, the plaintiff in the executory proceedings and respondent herein, sought to prove by parol evidence that prescription on the note had been interrupted by the acknowledgment of the maker and by certain specific payments made on the note, and counsel for relator promptly objected to the testimony, but the objection was overruled. This court has repeatedly held that, under the express provisions of article 2278 of the Revised Civil Code, parol evidence is not admissible to prove any acknowledgment or promise of a party deceased to pay any debt or liability in order to interrupt prescription or to revive the claim after prescription had run. See Succession of Hillebrandt, 21 La.Ann. 350; P.J. Pavy v. Elizabeth Escoubas, Administrator, 23 La.Ann. 531; Coyle v. Succession of Creevy, 34 La.Ann. 539; Succession of Driscoll et al., 125 La. 287, 51 So. 200.
The note foreclosed upon was dated December 30, 1926, payable three years after date, and the suit was filed on the 10th of October, 1935, more than five *Page 831 years after the maturity of the note. Necessarily, on its face, the note was prescribed. We are therefore of the opinion that the court erred in allowing respondent to introduce parol evidence, over the relator's objection, to prove that certain payments had been made on the note and also that acknowledgments had been made by the maker before her death. The objection should have been sustained and the introduction of the evidence disallowed.
This leaves for our consideration the sole question as to whether or not the suit instituted on April 17, 1934, by Robert A. Lewis and his sister, Mrs. Lenora Lewis, wife of Louis J. Prosper, as the sole and only heirs at law of their mother, Mrs. Matilda B. Gibson, widow of John Lewis, to have the two mortgages declared null, was sufficient to interrupt prescription.
An examination of the pleadings in that case shows that plaintiffs in nowise admitted or acknowledged the indebtedness. On the contrary, the sole purpose for which the suit was instituted was to annul the mortgages on the ground that the notes identified therewith were issued by their mother to the respondent (Mrs. Martha M. Reed) without consideration and for the purpose of depriving them of their legitime. This was the only issue in the case because respondent in her answer simply prayed "that there be judgment in her favor * * * herein dismissing plaintiffs' suit at their cost," *Page 832 and judgment was rendered accordingly. We therefore conclude that the filing of that suit could not have interrupted prescription.
Respondents, however, argued in their brief that as long as that suit was pending prescription was suspended, relying on Pothier on Prescription (referred to in the case of Jones v. Texas P. Ry. Co., 125 La. 542, 51 So. 582, 136 Am.St.Rep. 339), and Harvey v. George Pflug, 37 La.Ann. 904, upon the theory that as long as the suit to declare the mortgage note foreclosed upon invalid was pending, respondent could not have "usefully" brought a foreclosure proceeding. There would be some merit in this argument if respondent was without a remedy or precluded from taking action on her notes during the pendency of the suit. But this is not the case, for she could have asserted her rights and asked for judgment on the notes in a reconventional demand, because the two plaintiffs in that suit had asserted their rights as heirs of the deceased maker of the note and thereby accepted her succession unconditionally and therefore became liable for the payment of the debts of the succession. See Buillard et al. v. Davis et al., 185 La. 255, 169 So. 78, and other cases therein cited. Furthermore, she could have, in a separate action, proceeded either via executiva or via ordinaria.
For the reasons assigned, our original judgment is reinstated and made the final judgment of this court. *Page 833