APPEAL FROM THE COURT OF THE NINTH DISTRICT, JUDGE DAVIS PRESIDING. WESTERN DIST.

Discrepancies in a notarial act of sale and of protest, which appear to be mere clerical errors, and are immaterial to the decision of the cause, do not affect the validity of such acts.

Where certain notes are not paraphed and identified with a mortgage, yet, if upon comparison of dates, and the notes having been executed according to the terms and conditions of the act of sale and mortgage, it is sufficient to support the executory proceeding.

A mortgage is in its nature indivisible, and prevails over every part of the immoveable subjected to it, and the mortgaged premises must be sold to satisfy the whole debt it was taken to secure, and not a part thereof. The purchaser of property at sheriff's sale, is personally bound for the surplus of the adjudication, still secured by special mortgage on the property sold, and holds the surplus subject to the claim of the inferior mortgage creditors; and if he fails to pay when it is demanded of him, he is liable to be proceeded against as a third possessor.

October, 1840.

PEPPER ET AL. vs.

DUNLAP.

October, 1840.

PEPPER ET AL

WESTERN DIST, So, where a seizing creditor only sues for such instalments of a debt, secured by privilege or special mortgage, as are due, the property so mortgaged is to be sold for the whole of the debt, on such terms of credit as are granted by the original contract; although such creditor does not show that the subsequent instalments belong to him, or that he is the holder of all the notes included in the contract of mortgage.

V8.

DUNLAP.

This is an appeal from an order of seizure and sale.

The plaintiffs obtained an order of seizure and sale, on their mortgage, against the plantation and eighteen slaves of the defendant, for the payment of a note of four thousand nine hundred dollars, on which was a credit of one thousand nine hundred and forty-seven dollars, and another note of six thousand one hundred and sixty dollars; in all, nine thousand one hundred and thirteen dollars, which notes had been given in part payment of the original price of said plantation and slaves; being the second and third notes out of seven, which were given for the several instalments, into which payment was divided. The notes were not paraphed or identified with the mortgage, except as they corresponded in dates and amounts with the act of sale and mortgage. The petition describes all the notes given, and prays that the mortgaged property be sold to satisfy all the notes, but on a credit to meet those not due.

The order of seizure issued in the form prayed for, and the defendant appealed directly to this court.

There were some discrepancies and irregularities in making out the record and the documents contained in it, which appeared to be clerical mistakes in copying the papers.

Poindexter and O. N. Ogden, for the plaintiff and appellees, explained the apparent discrepancies in the record, in relation to the notarial act of sale, and the protest of the note signed by G. W. Hewett, instead of G. W. Keeton, the parish judge who made the protest. The act of sale was passed in the parish of Carroll, in which the property was then situated, but, by mistake in copying, is made to appear in the parish of Concordia. These are clearly clerical errors and mistakes, and ought not to prejudice the appellees. 6 Louisiana Reports, 646.

PEPPER ET AL.

2. The notes are sufficiently identified with the act of WESTERN DIst. sale and mortgage, by a correspondence in dates and amounts, October, 1840. and, also, by express reference to the notes. They are identified with the act, and described as being of even date therewith, and their tenor and amount are particularly set forth. 7 Lousiana Reports, 468.

3. The appellees are not to suffer, if the appellant has brought up his appeal on an imperfect record. It is full of errors and omissions; none of them, however, are of much importance, and all of them evidently clerical. The substance and material facts and documents, show clearly the true nature of the case, and will enable the court to decide on the merits.

4. The appellees deny that the order of seizure and sale contravenes the agreement and covenant in the mortgage, as respects the release of the ten slaves or payment of the second note. The payments made are set out in the petition, and allowed, and it is shown that the defendant had not complied with that stipulation which allowed the release of the ten slaves, because he had not completed the payment, as required.

5. At any rate, if the court is of opinion there is error in seizing the ten slaves, which were to be released on a particular payment being made, it can amend the order in this respect. There are eighteen slaves together with the land, included in the mortgage, and should the non-production of the first note, or the credit on the second, be considered as a compliance with this condition, then the remaining slaves and the land can be ordered to be sold.

6. There is no law requiring the production of the notes, not due, to the judge on granting the order. They are fully described and stated in the act of sale and mortgage.

Hyams and Dunbar, for the defendant, contended:

1. There is no legal act of mortgage, by notarial act. It appears that the notary was a notary for the parish of Carroll, and the act appears to have been passed in the parish of

DUNLAP.

WESTERN DIST. Concordia. He had no official character out of the parish for October, 1840. which he was appointed.

2. The protest of the note for four thousand nine hundred dollars, appears not to be signed by the parish judge, G. W. Keeton, but by G. W. Hewett, and is illegal, and furnishes no evidence of due demand of payment, which is a condition precedent to recovery.

3. The notes not being paraphed, there is nothing by which they can be identified with the act of mortgage, (if there be any act of mortgage, which is denied,) so as to authorize executory process.

4. The plaintiffs do no where allege, nor have they exhibited any evidence, that they were holders of the notes not due, at the time of the judgment, and yet, the judgment acts on them, and gives a judgment thereon for the plaintiffs.

5. It is a principle of law, that no executory process can issue before the judge at chamber, in the absence of any proof which, in an ordinary issue, the plaintiff would have to prove, before a recovery could be had against defendant; whatever a defendant would have the right of asking proof of, in an ordinary action, must appear on the face of the record, in executory process. In executory process and ex parte judgments of that nature, nothing is taken for granted, but every condition requisite to a recovery, must appear on the face of the papers; and here there is no such exhibit; and yet, both the clerk and the judge certify, that all the documents exhibited and evidence adduced, are embodied in the transcript.

6. By the instrument purporting to be a mortgage, it will appear that there is a stipulation that the "mortgage shall be raised on the ten slaves mortgaged, as soon as the two first promissory notes are satisfied, amounting to seven thousand four hundred dollars, and due 1st March, 1838.” These two first notes are, one for two thousand five hundred dollars, and one for four thousand nine hundred dollars, making together the said sum of seven thousand four hundred dollars. The first note, being the one for two thousand five hundred dollars, seems to have been paid and extinguished, (as it no where

PEPPER ET AL.

vs.

DUNLAP.

appears, and, although the first due at the time of the judg- WESTERN DIST. ment, nothing is said of it,) and on the note of four thousand October, 1840. nine hundred dollars, there is a credit endorsed of one thousand nine hundred and forty-seven dollars, making an aggregate payment of four thousand four hundred and fortyseven dollars, which would leave, on being deducted from seven thousand four hundred dollars, the sum of two thousand nine hundred and fifty-three dollars, for which there yet remained a mortgage on the slaves. If this amount (two thousand nine hundred and fifty-three dollars,) is collected from the defendant in any manner, by plaintiff, whether amicably or through the agent of his selection, (to wit, the sheriff,) the slaves would be free of mortgage. Therefore, the judgment of the court, if not otherwise tainted with manifold illegalities, would be illegal on this ground alone; as it should have directed that in the sale for cash, that so soon as the sum of two thousand nine hundred and fifty-three dollars, (for which sum only, there was an hypothecary claim against the slaves,) was raised, that the sheriff should proceed no further against the slaves, or those which might remain after the receipt of that amount by him, but that they should then be discharged out of his custody and delivered up to defendant, and that beyond that amount, the claim by mortgage be restricted to the land; leaving the plaintiff the option, (the mortgage being indivisible) to make the whole amount of two thousand nine hundred and fifty-three dollars out of any part of the mortgaged property, whether land or slaves : Whereas, the judgment is made executory and hypothecary, for the whole debt on land and slaves, whether due or not due.

Simon, J., delivered the opinion of the court.

This is an appeal from a judgment or order of seizure and sale, granted on a notorial act of sale of certain property sold by plaintiffs to defendant for a large amount, a great portion of which was paid cash at the time of the sale, and the balance to be paid at certain terms of credit. Sevennotes were given for the respective amounts of the several instalments; the first note was regularly paid, but the second