HENDERSON v. GOODE.' HENDERSON et at
GOODlt et al·· (HOME INS;' Co.
et al., Interveners.) .
(Circuit Court, E. D. Louilriana. April 9,1892.)
MORTGAGE PIUVILEGES-PRIORITIBS-EXEC1:tTORY PROCESS.
Even if a mortgage, given to secure the purchase price of property in Louisiana, has become perempted, the vendor's privilege survivell,and the assumption thereof by a new purchaser continues the same against him, and upon the property, outrankinj;( even that of the second vendor; and, such .assumption is executed notary and two witneBBes, executory proces&, will Issue under Code PI'. art& 782, , When the United States court has jurisdiction over the caUII6 and the res, other parties, whose citizenship would not have allowed them to institute the suit, may lutervene to assert their rights in the relI, but they cannot have original process.
I. 1l'EDlIRAL' CoURTS-JORISDIOTION-CITIZENSIJIP.
In Equity, Bill by William Henderson and others against Lenore W. Goode and others to enjoin executory process. ' Henry L. La1£1,T'U8and Horace E. Upton, for complainants. Hugh a. Cage, for Mrs. Goode. CarroU Carroll, for, Crescent Insurance Company, intervener. Brm.one Clwate, for Home Insurance Cbmpany I intervener. W. 8. 'Benedict, for Julius Schwabacher, intervener. BILLINGS, District Judge. This is a bill in' equity to enjoin an executory process. The defendant Mrs. Goode obtained an order of seizure and sale,under Code Pro art. 732. The Home Insurance Company, the Crescent· Insurance Company, and J. M. Schwabacher have intervened, each c1uiming rights as mortgagee; and the two first interveners asked aud obtained additional executory process. The facts necessary to an understanding of the issues are as follows: In 1881 the defendant Mrs. Goode sold and conveyed to Bisland the" Aragon Plantation." For a portion of the price he executed to her a mortgage upon the same in 1881, but has for $17,074.60. This mortgage was properly never been reinscribed. In 1885, Bisland sold and conveyed toCalder, $16,67,5.12 of the purchase who, in the notarial act of transfer, price remaining due from Bisland to Mrs. Goode. This notarial act was, in 1885, recorded in both the conveyancing and mortgage offices of the proper parish. Calder has gone into insolvency,' and the complainants are his syndics. The complainants, as ground for the .injunction asked, urge that the original mortgage frO):D Biillarid to Mrs. Goode, not having been reinscribed, has become perempted,and cannot be the basis of an executory proqess. But this is a process based upon the assumption by Calder of a portion of the original Even if thi!! mortgage to secure this price had become perempted, the privilege of Mrs. Goode, .as vendor, still survived j;\gainst the property, and was assumed by Calder before a notary, in the presence of two witnesses. The Code .of Practice. authorizes execiltory process wherever a mortgage privilege exists in favor of the creditbr, which is evidenced by a notarial before a notary and in the presence of two witnesses. Articles act '732,733.' This proof exists in this case. '. The case of Dejean V. Bel'bert,
31 La. Ann. 729, is authority. There the act showed no mortgage. but did show that. the purchase price was due which carried the vendor's privilege. Here the act shows, in connection with the original mortgage, a mortgage claimed to be peJ'empted, but an admittedlyexisting and assumed privilege. That such an assumption continues, as ,against the new purchaser and, upon the property sold, a vendor's privilege, which outranks that even of the second vendor. is abundantly settled by the decisions of our supreme court. and was not questioned in the argument. As'concernSMrs. Goode, the citizenship of herself and Calder is such that the court has jurisdiction over the ,cause and the-r.e8,-the mortgaged premises. This is true of Schwabacher, who is Missouri.. So far as the Home Insurance Company and the Crescent Insumnce Company are concerned, they are citizens of this state,:al}ddh,erefore,.of the sanJe state as Calder; bUt ,they are citizens of another state than that of Mrs; Goode. They could not have instituted the s\],\t in the United States circuit court, nor can they have original process. But, the court being in possession of a 'res, in a proceeding ovell Which it had,jurisdiction. they have properly intervened to asserttheir.lligpJs in the res. In this respect they are like people claiming in an admiralty court liens which spring from state statutes. They cannot bring the res into the court, but may assert their privileges after it brQ!1ght there by those having' admiralty Jiens; The injuncSO far as relates to Mrs. Goode, Schwabacher, and the tion marshal, and is allowed so far as relates to the independent executory Crescent Insurance Companies, leaving them process. of the Home full right to enforce whatever rights they have as interveners in this case.
(OCrcu1toourt, D. DeZaware. January 88, 1811a.)
.$. a contract dissolving a partnership alleged that, while plaIntUr was confined to his 'bouse by illness, his two copartners insisted upon a settlement, and as a basis therefo):"llresented a statement, in which the year's profits were es· timated, attliO 000.. 7'lie.actual profits werl') over $100,000; and plaintiff's bookkeeper testified' that before the settlenient be had made a statement, on request of one of tbedefendants, shoWing profits of about that amount. It appeared, howafter the settlement he made a statement showing profits of $60,ever, that 000, and ciefendants both testified that the statement showing $100,000 profits was made at a stilUater dater that no statement was made' before the settlement, and tbat the estimate Was bona fide. HeZa, that tbe charge of fraud was not made out.
BAME-FALSE' STATEMENTS NOT RELIED ON.
Plaintiff pQssessed ·an intimate knowledge of the firlXl's affairs, and testified tbat when the elltir;nate was presented he felt satisfied that it was much too low. but that heacoepted it because of his critical physical condition, and upon the advice even if the estimate was knowof his pbyslo18n to give up business. HeZd. ingly false, be was entitled to no relief, 8S he was not in fact deceived.
&. SAMB-MI800N;t>VCT OF PLAINTIFF.
Where a partner raised money on the firm paper to purchase a rival concern for his own benefit, enticed away valued employes, and, under tbreats of liquidation