H. Abraham & Son v. New Orleans Brewing Ass'n

Citations

• 110 La. 1012
• 35 So. 268
• 1903 La. LEXIS 743

Syllabus

<p>JUDICIAL SALES — ASSUMPTION OE DEBT — RIGHTS OP PURCHASER — MORTGAGE DEBT —COUPONS—INTEREST—ATTORNEY’S PEES.</p> <p>1. When the Oode speaks of confusion destroying the obligation, it does not mean that the active side alone of the obligation is destroyed, but also the passive side, so that a purchaser at a judicial sale, who retains the price of the sale and assumes to pay a debt secured by mortgage on the property, is liberated from his assumption to the extent to which the mortgage debt is due to himself. Because in the deed to this purchaser the entire price is said to be retained to pay the entire mortgage debt — in other words, because in the recitals of the deed the confusion is ignored — the legal situation is not changed; none the less the assumption by the purchaser is reduced by the amount of the debt due to himself.</p> <p>2. Interest coupons, which by the condition of the contract are required to be presented for payment at the office of the corporation issuing the bonds, bear interest from maturity. ‘ without presentation, when it does not affirmatively appear that the debtor corporation was prepared to make payment on presentation; aliter when such preparedness affirmatively appears.</p> <p>3. The stipulation for the presentation of the coupons is in the interest of the debtor on the bonds, and passes with the obligation on the bonds to whomsoever this obligation may pass.</p> <p>4. The following stipulation for the payment of attorney’s fees, namely, “In the event of the nonpayment of said bonds or any one of them at their maturity the mortgagor hinds himself to pay the expenses incurred by the holder of the bonds in attorney’s fees, said attorney’s fees, however, to be fixed at five per cent, on the amount for which judgment may be obtained,” when fairly interpreted, means that the mortgagor shall pay attorney’s fees in case the employment of an attorney is made necessary by default on any of the payments to be made under the act of mortgage.</p>