dissenting.
I have not the good fortune to agree with a majority of the court, in the conclusion to which they have come, an'd I proceed very briefly to set forth the grounds of my dissent..
I assume in the first place, what will not be controverted, that the judgment of the Supreme Court in the case of M'Donogh vs. Zacharie; (5 La. Rep., 247,) has not in this case, and between these parties, the authority of the thing adjudged. And, secondly, that the notes in question were given for a consideration which renders them obligatory on the defendants, unless they show error originally when they were given; or a subsequent discharge or release. They were given by persons who stood in the relation of heirs or executors *144of Madame Zacharie, who was personally liable for the whole of the Pemberton debt. They had personally a deep interest in the matter, in order to save the property in the family after' having made large payments and to gain farther time.
Bullard, J. and •Martin, J., dissenting.— The failure to give notice of the extinguishment of a mortgage, did not forfeit accruing interest; it only authorized a suspension of the payment. Interest still runs in such a case, although not exigible.The notes included the whole balance of the Pemberton' debt assumed by Madame Zacharie, with arrearages of infer-' est, according to the terms of the contract, and interest added up to the time the notes were to fall due. The whole were blended together, without inquiring whether Pemberton could shelter himself from the payment of any part of the interest behind the mere verbiage of a notary, without inquiring whether authentic evidence of the release of a mortgage in the proper office, which is notice to the whole world, was not also notice to Pemberton. One of the notes was paid; that is to say, a part of the interest and a part of the principal. It will not be pretended that the notes were without consideration; and, in my opinion, the makers can escape from the payment of them only by showing that .they were given in error ; or that they have been since legally exonerated from their payment.
I. The judgment in the case of M'Donogh vs. Zacharie, does not show that error. Madame Zacharie never stipulated for personal notice to herself. She had paid large sums j twelve thousand dollars paid by her were imputed to the Pem-berton note due in 1824, and more than eight thousand dollars to that due in 1825 : Besides, when she purchased and assumed to pay Pemberton’s debt, she must be- presumed to have engaged to pay the interest as well as principal. According to the original contract the failure to give notice of the extinguishment of the mortgage, did not operate a forfeiture of the accruing interest. It only authorized Pemberton to suspend and refuse the payment; and we held unanimously in a very recent case, that the interest still runs in such a case, although not exigible. I leave to those who were members of the court at that period to speak ofvthat judgment. It would not become' me to say it was erroneous and not founded in sound principles. It is enough for my purpose that it is not in this case *145res judicata ; and therefore not conclusive as to the lights of the parties now before ns.
ít 6e ^ essenee of the pactum consti-tufas pecunias that there sho’ld he a preexist-only t<f avoid ^ Suffices"’!?Uthe delltí tJle ment of •which is promised,, foro consden-uíere should ex-j^ta 4Fst ment, although Jw^'^deciar-ed mllIrThe notice of release of mortgage was to be given before the payment in March, 1824. After that time upwards of twenty thousand dollars were paid, and on discovering- at that time that Pemberton had not been notified, could she have recovered back any part either of the principal or interest ? I think not, because being originally a stranger to the primitive contract she must be considered as having notice, not having required personal notice herself, and having paid accordiiig to the terms of her own contract as well as Pemberton’s she must be regarded as having Waived notice. She paid what was morally due, interest on the price of property producing revenues. She purchased also long before M'Donogh was obliged to give the notice to Pemberton ; she assumed to pay his debt ; that stipulation was accepted by M‘Donogh; Pemberton was' no longer interested in the contract; he was laid entirely aside. This was in 1821; and yet Madame Zacharie pretended that Pemberton was to have notice in 1824; and because he was not hunted up, after parting with all his interest, and formally notified of the release of the mortgage, she and her estate are to gain twenty-four thousand dollars.
It is said that the engagement of Keif and Zacharie to pay the debt of Madame Zacharie is the pactum constitutx pecunix. 1 J Be it so. “If it be of the essence, says Pothier, of the pac- ... , . . r , , ... turn constitutx pecunix, that there should be a pre-existing debt, it is only because it ought to have, for its object, a payment without which it would embrace a donation. Now in order that this pact should not contain a donation and that it should have a payment for its object, it suffices that the debt, the payment of which is promised, should be due, at least in foro consciencix; and that there- should exist consequently a just subject for payment; although it may be in foro legis de-dared null by the civil law Pothier on obligations, vol. 2, page 369. Now I ask, was not Madame Zacharie hound in conscience to pay the interest as well as the principal? Was *146there any conscience in setting up as an excuse for not pay-at that Pemberton had a right to suspend the payment) if notice was not given to him of the release of the mortgages 1 Admitting that upon mere technical grounds, in apicibus juris, M'Donogh could he deprived of a large amount of his interest which arose ex mora, would any court, governed by principles of equity, have decreed him to refund it, if it had been paid. Even usurious interest paid cannot be recovered back. But she had paid after the time for giving notice had arrived ; she did not insist upon the condition ; a part at least of two installments of the Pemberton notes were paid. Was that not her construction of the contract ? No lawyer would hazard his reputation by suing to recover back for Madame Zacharie those payments, on the ground of a want of notice to Pemberton, when she alone had any interest in being informed of the discharge of the mortgages.
The agreement of M‘Donogh, that on the payment of the notes given by the defendants, he would surrender to them the Pemberton notes, means nothing more, in my opinion, than that he would put it in their power to cause all mortgages to be raised. He reserved the right of proceeding on his original mortgage, but this .means nothing more than that no novation was intended. The debt due by Relf and Zacharie was greater than Pemberton's by the addition of interest; Relf and Zac-harie cannot now complain that the Pemberton notes have not been given to them; they prevented compliance with that agreement by not paying their own notes. M'Donogh reserved the right to go upon the mortgaged property, but nothing shows any intention in that event to release the defendants.
II. I have had more difficulty on the question growing out-of M‘Donogh’s discharge of the twelve months bond, than any other arising in the case. He admits by way of recital, it is true, that the amount of the bond, to wit: $52,000, was, according' to the judgment of the Supreme Court, the balance due. He acknowledges to have received, the amount of the bond, releases the mortgage and reversions of mortgages assumed by *147Madame Zachari^. Those expressions I do not understand and cannot give to them the effect of releasing Relf and Zacharie from the payment of their notes ; their pactum con-stitutse pecunise; because, in my opinion, they and Madame Zacharie and her heirs are bound in conscience to pay the whole interest as well as capital, notwithstanding the success of this technical defence.
If it be true, as taught by Pothier, that the pactum constitutes pecunise be valid although the debt which forms the object of it, be not recoverable in strict law, I cannot understand how M'Donogh’s acknowledgment, that he had received the amount of a twelve months bond, which according to the judgment of this court formed the balance due by Theodore Za-charie, could exonerate Relf and Zacharie from the payment of such part of their notes as would make up to M'Donogh, what they admitted was the balance due him.
My opinion is, the judgment should, be reversed and judgment entered for the plaintiff.
Martin, presiding judge ; concurred in the above opinion.