Plaintiff, alleging himself to be the owner of certain lots of ground in the city of Shreveport, and that the same had been seized under execution issued on a judgment that Belcher & Creswell, a commercial firm, had recovered against one Willie Johnson, and were being advertised for sale under said judgment, brought the present action to enjoin the sale. Upon issue joined in the court below, judgment was rendered perpetuating the injunction which had issued. Defendants appeal. The substantial facts are these: In March, 1901, Willie Johnson appeared before a notary public and two witnesses, and executed an act of sale to W. C. Agurs of the lots of ground in question. Agurs was present and accepted the sale. The price was $600. Willie Johnson, being unable to write, could not sign his name, and the notary undertook to write his name, and then have him make his mark, thus, "X," between his given name and his surname. But while the name of Willie Johnson was written all right in the act of conveyance as the appearer, when the notary came to write his name at the foot of the act he wrote it "Willie Jones." This error was not noticed by any of the parties, and thus the deed appeared signed in this way: "Wil his lie X Jones." mark. But the man who actually appeared and touched the pen in making his mark was Willie Johnson. The notary in question was the deputy clerk of the court. When he came to make the customary indorsement on the folded act, he carried the error further by indorsing it, "Willie Jones to W. C. Agurs." The deed as thus indorsed he then marked, "Filed and recorded." It was inscribed in the conveyance book, the name of Willie Johnson appearing in the body of the inscription, while that of Willie Jones appeared at the foot of the deed and on the margin of the page; the latter thus: "Willie Jones to W. C. Agurs." And when the deputy clerk came to index the act he indexed it as "Willie Jones to W. C. Agurs." The following year (1902) Willie Johnson became indebted to Belcher & Creswell. They recovered judgment against him for $1,750, and caused the same to be inscribed in the mortgage book. Subsequent to this, Agurs, the vendee of Willie Johnson, having discovered the error above referred to, took Willie Johnson to the deputy clerk, who, as ex officio notary public, had passed the act, and, causing the deputy to exhibit to them the original act, pointed out to him the error, and requested its correction; whereupon the deputy made the correction by erasing the name "Willie his X Jones," and substituting for it "Wil mark. his lie X Johnson." mark. Like changes, to correspond, were made in the conveyance records and also on the index. This was before the fi. fa. issued on the judgment which Belcher & Creswell had recovered against Willie Johnson, and under which they caused the lots to be seized. The fi. fa, issued subsequently the same day. The first answer of Belcher & Creswell to the injunction petition of Agurs was that the instrument relied upon by the latter as showing his ownership of the lots was not binding on them for the reasons: First, that the act of sale as executed between Agurs and Willie Johnson in March, 1901, and, as recorded, was not such notice to the public as the law requires; and Second, that the changes made in the act after registry of their judgment were ex parte, without notice, and could not affect them, or impair their rights already existing. These defenses are not tenable. Johnson did actually convey the property to Agurs. His was the hand that made the mark which stood for his signature. The proper man, therefore, signed the deed. The true sig nature was his act in making his mark, not what the notary wrote. See Zacharie v. Franklin, 12 Pet. 151, 9 L. Ed. 1035; Tagiasco v. Molinari's Heirs, 9 La. 512; Maddison v. Zabriski, 11 La. 251. Had defendants read the act, they would have learned from its recitals that it was Willie Johnson who appeared before the notary and made the sale. At least, they would have been put on guard. Their position, therefore, that the instrument conveying the property was not sufficient notice to them, is not sound. Because the deed was indexed erroneously cannot be given the effect of depriving Agurs of his property. Swan v. Vogel, 31 La. Ann. 38. The index is no part of the record; it is simply for the convenience of those examining the records. Swan v. Vogel, 31 La. Ann. 40. See, also, Caldwell's Ex'rs v. Prindell's Adm'r, 19 W. Va. 669. The deputy clerk, who officiated as ex officio notary, testified he wrote the name "Willie Jones" at the foot of the deed through inadvertence; that it was Willie Johnson who actually appeared before him and touched the pen, and whose name he intended to write. The second answer of Belcher & Creswell to the injunction petition was that the sale to Agurs was not intended by the parties as a sale, but as a mortgage to secure the loan of $600, which sum was named as the consideration of the sale. The only testimony found in the record touching upon this issue is that given by Agurs on cross-examination by defendants' counsel. He swears positively to have purchased the property outright for $600 cash, and that the transaction was a sale, and not a mortgage. Judgment affirmed. (35 South. 608.) No. 14,697. STATE ex rel. LEGIER v. SUTHERLAND.* (Dec. 14, 1903.) MORTGAGE NOTE-PURCHASE AFTER DUERIGHTS OF PURCHASER. 1. A person who purchases from an attorney at law holding in his possession a past-due mortgage note, executed by the maker, to his own order, and by himself indorsed, which has been paid by the maker, without ascertaining what right the attorney has in respect to the note, does so at his risk; and, if he had no right to extend payment of the note or to sell it, the purchaser takes it subject to the equities. (Syllabus by the Court.) *Rehearing denied January 18, 1904. Certiorari to Court of Appeal, Parish of Orleans. Action by Bertha Sutherland against John Legier, Jr. Judgment for plaintiff was affirmed by the Court of Appeal, and the state, on the relation of John Legier, brings certiorari or writ of review. Affirmed. Walter L. Gleason (McCloskey & Benedict, of counsel), for applicant. Edward A. Parsons, for respondent. Statement of the Case. NICHOLLS, C. J. In the application made to this court for review, the facts of the case are stated as follows: Mrs. Bertha Sutherland bought a piece of property for $1,100, of which $700 were paid cash, and the balance, $400, represented by a mortgage note drawn to her own order, and by her indorsed. This note she subsequently paid. The signature and indorsement, as well as the mortgage inscription, remaining undefaced and uncanceled, Mrs. Sutherland negotiated this note with petitioner, for which he paid her $390, the check representing the purchase of which is in the record. When this note fell due after a conventional extension, petitioner foreclosed, and was met by an injunction of Mrs. Sutherland, maker, in her own behalf and in behalf of her minor children. The injunction was based on the theory that, inasmuch as this note became extinguished by Mrs. Sutherland, she could not reissue it and revive the dead mortgage, and hence, although she sold to petitioner certain mortgage rights against her property, he had no such rights even against her. The district court perpetuated the injunction, and enjoined the sheriff from selling the property mortgaged. Plaintiff appealed to the Court of Appeal, and that court affirmed the judgment and refused to grant a rehearing. This court ordered the record to be certified and sent up for review, and the case is now before us for adjudication. The plaintiff instituted a suit in the civil district court in which he prayed for executory process in enforcement by seizure and sale of certain specified property of a note of $400 executed by Bertha Swan, widow of Robert Sutherland, dated March, 1899, pay able one year after date to her own order, by her indorsed, with interest at 8 per cent. per annum from date until paid, payment of which note was secured by special mortgage on the property sought to be seized, and sold by notarial act before H. L. Lomis, notary public. Plaintiff averred that he was the holder and owner of the note referred to, and the maker of the same was indebted to him for the amount thereof, and 10 per cent. upon the amount for attorney's fees. He admitted that interest had been paid upon the note to January 9, 1901. The usual orders required in such cases were granted by the court, and the property was seized. The maker of the note, Mrs. Sutherland, in her own behalf and as tutrix of her minor children, filed a petition in which she prayed, in the matter of these proceedings, that a writ of injunction issue to the civil sheriff and the plaintiff, enjoining them from selling the property described on March 27, 1902, as advertised, or any other time; that they be cited in the premises, and that after due proceedings there be judgment against them and in her favor, individually and as tutrix, decreeing that the minors' mortgage primed all other mortgages; that the injunction be perpetuated; and she further prayed for all other decrees and judgments necessary in the premises, and for general relief. This injunction was based upon allegations of the maker that she had on or about the 9th of March, 1900, paid in full the principal and interest of the note declared upon, and received possession of the same; that by said payment she became the owner of the note, and the mortgage securing the same became extinguished by said payment in full; that prior to the payment of the note she was appointed and confirmed and qualified as tutrix of her minor children, on whose behalf she appeared, and a legal mortgage was inscribed against her property, as would appear by a certain record, which she declared she annexed for reference; that, having paid said debt, and the mortgage securing the same having been extinguished, the only mortgage remaining on her property was that in favor of her minor children; that in January, 1901, she took the note to her attorney, and explained to him that she had paid the same, and he agreed to raise a sum of money for her upon it, and gave her a receipt for the same, which she annexed; that she received in all from the loan on said note the sum of $200; that the vendor's privilege was extinguished when she paid said note, on or about the 2d of March, 1900, and, if any mortgage still existed, it was subsequent to and secondary to the minors' mortgage; that the plaintiff acquired said note after maturity, and all the equities which she had against her attorney could be pleaded against him; that the minors' rights, as well as her own, would be irreparably injured and sacrificed if the sale was permitted to take place, and the injunction prayed for was necessary to protect her minors' rights as well as her own. A preliminary injunction issued as prayed for under the court's order. Plaintiff answered the injunction. He first pleaded the general issue. He admitted that he was the holder of the note, and averred that the same was acquired for him by his agent, for a valuable consideration, before the maturity of the extension of the note, and it was not subject to the equities between the maker and other parties. That the note was acquired from plaintiff's attorney for the sum of $390, and his own agent was influenced by the extension of the note, and would not have purchased the same, had it not been extended; that the maker called on his agent and attempted to borrow more money, but that at no time did she state or suggest that the note was not a valid obligation; that the minors were without interest, and had no cause of action; and that both parties were estopped by their actions from setting up a condition of facts contrary to the rights of the holder of the note. Plaintiff prayed that the exception of no cause of action be maintained against the minors, that the plea of estoppel with respect to both be maintained, that the action of the plaintiff be dismissed, and for general relief. The district court rendered judgment ordering and decreeing that the writ of injunction which had issued be perpetuated, and accordingly the sheriff and the plaintiff were enjoined and prohibited from selling the property. The court further adjudged that there be judgment in favor of the plaintiff in injunction in her individual capacity, and in her capacity as tutrix of her minor children, against the plaintiff, decreeing that the minors' mortgage primed all other mortgages. Plaintiff appealed from this judgment to the Court of Appeal, and that court affirmed the judgment. Opinion. The agent of the plaintiff who acted for him in the matter of the note declared upon testified that he had purchased it from an attorney at law, who called on him and asked him to buy it; telling him he held it for one of his clients, Mrs. Sutherland. Witness did not know he was representing the maker of the note. Witness answered that he would have to look up the title. This he did, and, being satisfied with the result of the examination, he gave him a check for $390, and took possession of the note; receiving a fee of $10 for making the examination. When he was called on in regard to the note after he had made the examination, he told the attorney that, before he bought it, it would have to be first extended. When he first saw the note, it was a past-due note, and had no extension upon it. He told the attorney he would lend money on it if it was extended, and the extension which was written on the back of the note was made. It was written and placed there by the witness himself. After writing the extension, he handed the note back to the attorney, and then gave him a check and took the note. About six months after this the maker of the note called on him, wanting to borrow $25 more, but he told her he could not lend her any money at that time. She did not say anything about the money she got from the attorney; did not mention him at all. There can be no question as to the payment of the note and the surrender of the same by the maker. Mrs. Sutherland, the maker, and Zengel both testify to that fact. The former testified: That she called on the attorney referred to, to borrow $200, and he asked whether she could give him any securitywhether she had any papers or anything-and she said she had. So she took him what papers she had-title deeds, insurance papers, and other little papers. That he took 111 LA.-13 this note out, telling her he could borrow some money on it-one or two hundred dollars. Witness did not understand that by obtaining a loan of $200 she was to give a mortgage on her property. He did not ask her to give a mortgage on her property, and she would not have permitted him to place a mortgage on her property for $200, had he asked it. She did not know that the note was a mortgage note. She did not know at the time what the note represented, or what its nature was, or that she could get money on it, until she took it to the attorney. She did not personally give it to him. He took it from among her papers. She did not authorize him to take the note and negotiate and borrow money on it. He did not tell her the $200 he turned over to her were realized on the note. He told her he did not lend her the money himself; it was another party; that he did not know the party. There was no evidence introduced as to the rights of the minors. This case presents no question of law, as we supposed it did when it was ordered up for review. Its decision in the court below turned upon questions of fact. It appears from the evidence that the plaintiff's agent had no dealings whatever with Mrs. Sutherland herself; that she neither made representations to him, nor authorized any one to make any, as to this note. The attorney who took it out from among Mrs. Sutherland's papers was without authority to sell it, or to represent it as being secured by a mortgage. The party who received the note was an attorney at law, and was fully advised of the situation when he did so. The note was then extinguished by payment, and the mortgage had fallen with the extinctions of the principal obligation. The extension of the note by plaintiff's agent did not have the effect of giving to it the character of negotiability, so as to cut off the equities affecting it, and we find no element of estoppel in the case. Plaintiff's agent, without inquiry, dealt with a party who was without authority to act as he did, and plaintiff must bear the consequences of his own imprudence. We find no error in the judgments of the Court of Appeal and the District Court, and they are hereby affirmed. (35 South. 610.) No. 14,833. SOUTHERN COTTON OIL CO. v. SHREVEPORT COTTON OIL CO.* (Dec. 14, 1903.) SALE-AUTHORITY OF BROKER-SECRET 1. A broker exhibited to plaintiffs a telegram from defendauts expressly authorizing him to sell for them 10 tanks of oil of a certain grade, and plaintiffs in good faith bought the oil. Defendants claim that before sending the telegram they had expressly instructed the broker to sell oil of a lower grade than that specified in the telegram. Held that, in dealing with the broker, plaintiff did not have to look beyond the telegram; that defendants, having held out the broker as having authority to make the sale, are bound by his act, notwithstanding any secret instructions they may have given him. (Syllabus by the Court.) Appeal from First Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge. Action by the Southern Cotton Oil Company against the Shreveport Cotton Oil Company. Judgment for defendants, and plaintiff's appeal. Reversed. Thatcher & Welsh and Sterling Pierson, for appellants. Thigpen & Foster, for appellees. PROVOSTY, J. Battle & Co., brokers at Memphis, Tenn., sold to the plaintiffs, the Southern Oil Company, of Memphis, Tenn., 10 tanks of cotton seed oil for account of the defendants, the Shreveport Cotton Oil Company, who are manufacturers of cotton seed oil at Shreveport, La. Plaintiffs understood they were buying the grade of oil known as "crude," or "prime crude," which is a standard grade of oil; and defendants contend that Battle & Co. had no authority from them to sell that grade of oil, but only "season's prime," and that in consequence there was no contract. "Season's prime" is not a classification known in the exchanges of the country. Plaintiffs bring this suit for breach of the contract, claiming by way of damages the difference between the contract price and the market price at the date when delivery should have been made under the contract. *Rehearing denied January 18, 1904. The questions in the case are, first, whether Battle & Co. had authority to sell “crude" oil; and, if not, then, second, whether defendants are not bound nevertheless, on the ground that they held out Battle & Co. as having such authority. The sale to plaintiffs was made some time in the morning of November 9th. The relations between Battle & Co. and defendants began, so far as the record shows, on November 5th. On that day the following communication passed between the parties: Battle & Co. telegraphed defendants: "What is bottom price ten tanks prime November?" And defendants promptly answered: "Sell ten November buyers tanks crude 28." During the day Battle & Co. wrote defendants, as follows: "We confirm our telegram to-day soliciting your lowest price on ten tanks of oil, and we have your reply authorizing us to sell at 28. We thank you very much for your prompt attention and beg to say we are exerting ourselves to put this trade through for you. However, we think it very improbable that any buyers in the market will pay 28 cents to-day for Miss. Valley oil. Some buyers are offering 26% and very few of them will pay as much as 27c. We have out several telegrams and just as soon as we can ascertain definitely the very best that can be done, we will either telegraph or call you over the telephone." And defendants wrote to Battle & Co., as follows: "Your telegram of to-day reading as follows: 'What is bottom price ten tanks prime November? We presume of course you refer to crude oil. We wired you immediately: 'Sell ten November buyers tanks crude 28,' all of which we confirm, at this writing we have not heard from you, therefore presume you are not desirous of taking the oil at this price, we will let others work on the same offer." At 6:47 p. m., while the above letters were in transit, Battle & Co. sent the defendants the following telegram: "Have tried hard to close but 28 impossible. Possibly can secure 27% but 27 best offering." And defendants answered: "If 28 impossible sell ten November December buyers tanks." |