Bayly v. McKnight

Labauve, J.

This is an appeal taken from an order of seizure and sale, granted on four mortgage promissory notes, dated 22d March, 1862, signed by the defendant, and by him endorsed injbla:ik.

The defendant and appellant urges that the case should be dismissed, because the evidence upon which the said order is founded, is insufficient and illegal, inasmnch as plaintiff saes as curator of a succession, and he has filed no letter of cnratorship, and because the notes sued upon were not stamped when used, with the proper revenue stamps according to the acts of Congress on that subject.

.Three notes were executed as part of the price of certain property sold to defendant, at the sale of the succession of Thomas B. Poindexter, and a mortgage was retained on the property to secure the payment of said notes, which are declared in the act to have been subscribed by the purchaser to his own order, and also to have been endorsed by him. It is stated in the act of sale and mortgage, that in order to secure the payment of said notes, with all intetests thereon as aforesaid, the herein above described and conveyed property is and hereby remains bound, mortgaged and specially hypothecated with privilege of vendor, in favor of the succession of the said late Thomas B. Poindexter, or of whomsoever may be the future holder or holders of said notes. Any holder of said notes, by exhibiting the same, together with a copy of the act, was entitled to an order of seizure and sale in his own name, or in any legal capacity, such as curator, etc., without producing letters of his alleged capacity, Louis Marthe v. George McCrystal, 11 An. 4. Race & Foster v. Owen Bruen, 11 An. 34. Montgomery, Executor, v. Myers, 2 An. 276. Rice, Curator, v. David Davis, 14 An. 435.

The other objection, that the notes were not stamped when used, with the proper internal revenue stamps, according to the acts of Congress on that subject, cannot be maintained. ' ■

No stamp is necessary upon an instrument executed prior to the 1st of October, 1862, to make it admissible in evidence. In this case the notes were executed on the 22d March, 1862, we have lately so decided in the case of Frederic Baur v. Richard, Shackelford, not yet reported.

We are of opinion that the District Court did not err in granting an order of seizure and sale.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.