Hillard v. Taylor

Citations

• 114 La. 883
• 38 So. 594
• 1905 La. LEXIS 563

Syllabus

<p>APPEAL — MOTION TO DISMISS — PETITION — EXCEPTIONS — FRAUDULENT MORTGAGE —■ NEGOTIABILITY — VALIDITY — CONSIDERATION — BONA FIDE HOLDERS — SUBSEQUENT TRANSFER-TAX SALE — PURCHASE BY REAL OWNER.</p> <p>1. On a suggestion made by a party who had taken a devolutive appeal, the court on the return day of the appeal extended the time for filing the transcript of appeal. It was duly filed under the terms of the extension. Thereafter appellee moved to dismiss the appeal on the ground that the inability of the clerk to have made out the transcript for the return day was due to the delay of the appellant to file his appeal bond. Appellant had stated in his application for an extension that there had been delay occasioned by pending propositions made by the appellee for a compromise. The delays for a devolutive appeal had not yet' expired. The court, for reasons assigned, refused to dismiss the appeal.</p> <p>On the Merits.</p> <p>_ 2. Though the petition be of doubtful sufficiency, the court will overrule an exception of no cause of action where there are- allegations of fraud and conspiracy, and under certain phases of the evidence a cause of action might appear.</p> <p>3. While the mortgage is negotiable, and follows the note it secures, yet it is not governed by the commercial law like the note, and does not enjoy the same perfect negotiability. Hence, where the ostensible owner of property has fraudulently mortgaged it and negotiated the mortgage paper, the right of the real owner to contest the validity of the mortgage is not to be determined exclusively from the consideration of whether the mortgage paper .was negotiable, and was acquired for value, in good faith, and before maturity, but rather from the consideration of whether, under all the circumstances of the case, he is estopped from doing so.</p> <p>4. Until the contrary is made to appear, negotiable notes in the hands of a third person are presumed to have been acquired in good faith, for value before maturi