Abbott v. Pratt

¶1On Rehearing.

¶2[4, 5] A further consideration of this case leads to the conclusion that the situation is in no wise different to what it .would have been had the plaintiff in the foreclosure proceedings, in the first instance, presented to the court a petition alleging the absence of the mortgagor, and praying for the Efppointment of a curator ad hoc or attorney to represent him. It was not re? quired that the absence of the mortgage debtor should be disclosed by authentic evidence, but the mere averment of his absence was sufficient to authorize the court to make the appointment. Frost v. McLeod, 19 La. Ann. 80. His absence was not discovered until an effort was made by the sheriff to serve the notice to pay, and then it was that counsel for plaintiff in execution presented a formal motion to the court, asking the appointment of an attorney to represent him, and .with whom the proceedings were contradictorily carried on. The article of the Code of Practice providing for the appointment of attorneys for absentees in such circumstances is as follows:

“Art. 737. If the debtor who has granted the privilege or mortgage is absent, and not represented in the state, the judge, at the request of the plaintiff, shall appoint him an attorney, to whom notice of the demand shall be given in the manner above directed, and contrarily with whom the seizure and sale shaE be .prosecuted.”

¶3On the face of the papers, the proceeding seems to have been regular and all that the law required. It is true that laws providing for substituted process are in derogation of ordinary rights, but if the statute, has been fully complied with, that is sufficient. 21 R. C. L. p. 1283. To what extent, then, is the purchaser at such a sale bound to look beyond the decree of the court making the appointment and ordering the seizure and sale?

¶4We must not lose sight of the fact that, under the peculiar provisions of our law, the proceeding is essentially one in rem, in which the debtor has, in effect, confessed judgment in advance, and authorized the sale of his property upon his failure to pay at maturity, and .which right runs in favor of any bona fide holder of the obligation. All that is necessary to obtain the order for seizure in sale is to present to the court authentic evidence of the debt and the act by which it is secured. No issue is joined which permits the introduction of extraneous evidence, but the debtor may appeal on the face of the papers; or, if the debt has been paid, novated, or prescribed, thq Code of Practice points out a specific remedy by injunction, and which is issued without bond. C. P. art. 739 et seq.

¶5It has been suggested that if it be per*749missible to seize and sell the property of a debtor upon the bare allegation of Ms absence, one might be deprived of Ms rights though temporarily absent, and while in reality a bona fide resident of the state. The answer is that, unless the debt is due, there is not that sufficient evidence to sustain the order upon .which the judge must-act, the debtor has a right of appeal, suspensively for 10 days, and devolutively for one year, and a purchaser at foreclosure, where the debt was not due, would be charged with notice of this fact on the face of the record. On the other hand, if the debt is due and unpaid, the debtor must be held to a knowledge of the maturity of his obligation, and the physical seizure of the- property, together with the 30 days public advertisement necessary under the law, is sufficient to overcome any such equitable consideration that might exist in his favor. Again, how would it be possible to determine the absence of the debtor in such circumstances so as to bind him any further than he was bound under the proceedings in the matter now under consideration? In executory proceedings, the judge is not permitted to consider anytMng but the authentic evidence in granting the writ, and if you wished to determine the question of residence, with whom could it be done? Would it not necessarily have to be .with a curator or attorney? If so, how much more effective would such a proceeding be, as to the debtor, than if a curator or attorney were appointed in the first instance? Yet, must the creditor be denied his remedy, and must his security be rendered valueless through the unwillingness of prospective purchasers to bid at such a sale, because of the creditor’s inability to locate his debtor? If so, then an attractive form of security which the lawmaker has endeavored to provide, and which the solemn undertaking of the contracting parties attempted to put in that category, becomes a snare that the dishonest debtor may use at his pleasure, at least to the extent of provoking delays and litigation which the average investor would invariably steer clear of.

¶6[6] We cannot attach to the notice to pay in executory proceedings, on an act importing a confession of judgment, under the peculiar provisions of our law, that importance which accompanies a citation in ordinary actions. We think the worst that can be said of it is that it is a matter of form, curable by the prescription of five years. Allan v. Couret, 24 La. Ann. 24; Chase v. Gaslight Co., 45 La. Ann. 300, 12 South. 308; Proceedings in Rem (Waples) § 601, p. 751.

¶7Eor the reasons assigned, our former decree is set aside, and the judgment appealed from is affirmed at the cost of appellant in both courts.

¶8See dissenting opimon of PROVOSTY, J., 81 South. 299.