¶1There are three persons interested in this suit, to wit, the plaintiff, who has deposited $4,000 and interest in the registry of the court to pay the amount of his indebtedness, and each of the defendants who claim the amount.
¶2Plaintiff in his petition sets out that before Robert J. Maloney, notary public (as made to appear on the ■ face of the papers), he bought certain real estate on December 3, 190T, for $6,500, $2,500 in cash and $4,000 to be paid on a year’s time, represented by his promissory note, with 8 per cent, interest from date, secured as to its payment by mortgage and vendor’s privilege; but that in reality it was not a sale, but it was a mortgage. 1-Ie was the owner of the property, and the form of a sale was adopted to serve as a security, instead of a mortgage; that is, he sold the property, and it was resold to him on the terms before mentioned, and his note was transferred to Dr. Seikmann, one of the defendants.
¶3In due time Dr. Seikmann claimed the amount of the note which he held.
¶4As only one note was made for the amount, only one note was genuine.
¶5The plaintiff, in depositing the amount, averred that he left it to the court to determine to whom it' should be paid.
¶6Dr. Seikmann, one of the defendants, claimed in answer to plaintiff’s petition that he held the genuine note, and in a supplemental answer he averred that the amount deposited was not sufficient to meet the note and interest, and asked for an increase of the amount.
¶7The other defendant excepted on the ground thqt it could not be compelled to appear in this suit to liquidate the issues involved; that they are not issues that can be determined in proceedings en concurso, to use a Spanish terminology; that it was not proper nor legal to thus proceed en concurso! It claimed the right to foreclose either by executory process via ordinaria or via executiva.
¶8The exception was overruled.
¶9This defendant then answered, setting up that it held the genuine note.
¶10*841The case was called for trial before a jury.
¶11On motion of the Keystone Life Insurance Company, the court annulled the order which had previously been issued, ordered a trial by jury, and transferred the cause to the ordinary docket.
¶12There was a trial, and judgment rendered in favor of Dr. Seikmann, declaring him entitled to $4,320, now in the registry of the court, and ordering the clerk to place that amount to his credit, upon his surrendering to the plaintiff his note as paid in full; and the amended petition of Dr. Seikmann, filed May 13, 1907, was dismissed. The Keystone Life Insurance Company was condemned to pay the costs. The Keystone Life Insurance Company excepted to the ruling of the district court, which ruling, excepted to, held that in these proceedings en concurso the issues among the parties can be decided finally.
¶13It is incumbent upon us in the first place, under the issues, to determine the question. We agree with that view.
¶14On the merits, it will be incumbent upon us to decide who holds the genuine note.
¶15The proceeding, as above stated, is concurrent or en concurso. The parties in interest are not in the least prejudiced by the form.
¶16We have seen that the exceptor moved to set aside the order for a jury. He is scarcely in a position to invoke in argument the right to a trial by jury which he has chosen in effect to waive. He had wanted trial by jury.
¶17At this moment, although not directly in point, we can think of no reason why he would not have the right to a trial by jury if he had insisted upon that right. But this is only incidentally stated.
¶18The ground urged by the exceptor to have the proceedings dismissed in addition is that he has a right to the fee of attorney.
¶19If he has, he is not prejudiced by these proceedings, because he can recover them in these as well as in other proceedings.
¶20Granted that the considerations just before stated should not be controlling, none the less they should have their due weight, unless there is positive law to the contrary.
¶21We have found none.
¶22A large discretion, it has been held, is left to the courts when several parties have claims in the distribution of a fund. Gill v. Lake Charles, 119 La. 17, 43 South. 897.
¶23The object, 'to a reasonable extent, should be to put an end to lengthy, vexatious, and expensive litigation.
¶24When there is no express law preventing, equity.may be invoked. Civ. Code, art. 21; Code Prac. arts. 830, 877.
¶25In the absence of positive law, the judge decides according to equity. Moran v. Le Blanc, 6 La. Ann. 113; Brown v. Insurance Company, 3 La. Ann. 183.
¶26If we were to dismiss the suit at this time, there would come a time when it would be necessary to determine the rights of the parties concerned en concurso. What may be done hereafter may as well be done at this time.
¶27We are of opinion that the exception was properly and legally overruled in the district court.
¶28On the Merits.
¶29The question is one of fact. The note held by the insurance company became its property through Robert J. Maloney. He imposed upon the management of the company. He was one of its directors, its notary; and its attorney, and had drawn up the charter of the company. The management of the company did not suspect his fraudulent act. Some time after the transfer of the note now before us to the company, the officer in charge discovered that there was an error in date (owing to the manipulations of the notary, which is apparent at present, but was not at the time), which he, the officer, properly caused to be corrected at once. 1-Ie did not suspect that it was other than a slip of the pen in matter of date.
¶30*843The facts in regard to this note are that Dr. Seikmann met Robert J. Maloney, notary, and talked to him about the loan, which was afterward effected. On December 3,' 1907, the act was passed, and on that day the lender gave his check for the amount of $4,000, which Maloney took and pocketed. This was the genuine note, as made evident by the testimony of witnesses who have testified.
¶31As relates to the Keystone Life Insurance Company: The old note had become past due. At maturity it 'was not collected, as Notary Maloney informed the officer in charge of the Keystone Insurance Company that the maker’s wife had recently departed this life. Properly and naturally, time was granted by the president.
¶32Instead of paying over the amount which he had received, Maloney must have issued another note. There was unquestionably a forged note. It cannot be contended with any degree of reason that Lauterbach ever signed other than the one note.
¶33The weight of the testimony is that the note which Dr. Seikmann holds is the genuine note of the maker in question.
¶34There is no reason why the holder of the note which was forged9 should recover as against the holder of the genuine note.
¶35The genuine note is the valid title.
¶36If páper not genuine gets into commerce, it should be thrown out at first opportunity after the want of genuineness has been discovered.
¶37There are instances when third persons may acquire a right under such paper; as, for example, if one of two innocent persons must suffer loss, it may be visited on the person most at fault.
¶38Here we will not dwell upon the question as to who was most indifferent in regard to the paper. We will decide that the genuine paper must be paid.
¶39It is only necessary to determine which is the genuine note. That being decided, there remains nothing further for discussion as relates to this note.
¶40It only remains for us to affirm the judgment appealed from. It is therefore affirmed.