Pellerin v. Sanders

Citations

• 116 La. 616
• 40 So. 917
• 1906 La. LEXIS 539

Syllabus

<p>1. Mortgages — Ownership of Property — Consent of Owner to Mortgage by Others.</p> <p>Plaintiff enjoined the enforcement by ex-ecutory process of a note which she had executed jointly with two others, which was secured as to payment by special mortgage on certain property in its entirety and of which the makers in the mortgage act declared themselves to be the owners. The grounds of injunction were that the property belonged in its entirety to herself as sole heir of her father and mother; that the co-makers had no right in the succession of her father or mother, and were without right to mortgage the property; that she herself was not bound upon the note as the consideration had not inured to her benefit. That the note and mortgage had been extinguished by payment made by the plaintiff in the ex-ecutory proceeding, and if any claim he had, it was an unsecured claim for reimbursement for the money expended by him in making the payment; that payment had been illegally demanded of her of payment of the whole note under the executory proceedings whereas she was only bound for one-third if at all.</p> <p>Held, if the plaintiff was the owner in entirety of the property she was at liberty to dispose of it in any form she thought proper, provided third parties were not injured. If the co-makers of the note were not owners of the property, her own property was authorized by her to be mortgaged by them to the extent they did so by permitting them to unite with her in the execution of the mortgage.</p> <p>2. Descent and Distribution—Debts—Liability or Heirs.</p> <p>The note declared on was given for money borrowed of a bank to pay a prior note which had been executed by herself and the same parties, jointly with plaintiff’s father to enable him to pay a debt of his own, and which note was outstanding at her father’s death. Plaintiff accepted his succession unconditionally. If she was his sole heir she acquired all his property but became bound for the whole debt. Under pla