New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-11-23

| line district courts o03Oufned YESTERDAY
out of respect to the memory Of Geutenan
excepted. wherein IN adjournment il con
templated to-day.
The usual suits involving the determine
ton Of rights affecting various contendin.
| parties, and consisting Of claims upon prom
| issOry notes, suits on open account, anG
against steamers for supplies furnished
were fled, but show no merits other thar
belong to the particular cases.
Judge Theard delivered an opinion upon
the following case, wherein intricate ques
tons concerning the rights of holders of
mortgages were unraveled.
Byron johnson Va. Steven Duncan.-The
plaintiff was the holder Of note of Camp
bell & Purvis, for two thousand dollars,
dated at Vidalia, December g, 1859, paya-
BILE on the first of January, 1862, and bear.
ing eight per cent interest after maturity
until paid. The note was payable to their
own order, and by them indorsel in blank.
1t was secured BY mortgage on the Magnolia
plantation, in the parish OF ConcOrdia, be.
longing to Campbell e. Purvis, and was one
Of a series of notes, amounting in all to
$3l 900. DR.. Stephen Duncan, acting by
his agent, Josiah Winchester, ON the fourth
of January, 1867, entered into an agreement
in writing with Campbell & Purvis, BY
which he agreed to take the mortgage pro-
perty tor the amount Of the mortgage in
debtedness, especially including Byron
JOhnson's note for $4,000, with eight per
cent interest after maturity first Of Janu-
accepted by DR.. Duncan in full satisfaction
Of the mortgage Indebtedness then existing.
DIR. Duncan went to the North in 1863, and
never returned. He died early in 1867.
1t was necessary to cOnsummate this pri-
vate act Of transfer by q judicial sale under
the mortgage, and at that sale, on the sec.
Ond OF March, 1867. the defendant in this
suit became the purchaser OF the property,
as admitted on the trial, for the exact
amount as stipulated in the private agree
ment. including plaintiffs note and interest,
and which was the amount of the appraise-
ment, and the amount Of mortgage indebt-
edness as shown by the certificate Of mort
gage, aud by sheriff at the sale. The plain
tiff was not party to the private agree
ment. He instituted suit against Campbell
& Purvis in the district court of COncOrdia,
on his note; they called Stephen Duncan in
warranty to defend the suit, for the reason
that he, as third Possessor Of the property,
and by virtue of the private agreement un-
der which the judicial sale had been made,
assumed to payiJ ohnson's note.
The defendant, rs third pOssessor, set up
the defense that a valid agreement had
been made, that johnson was to take his
pro rata share of the proceeds when Duncan
sold the property. The district Judge de-
cided that the proof did not establish such
an agreement, and gave judgment against
Campbell & Purvis in favor Of johnson, the
plaintiff in this suit, for the amount of the
note and interest, aud Judgment in favor of
Campbell & Purvis in warranty against
Duncan, the defendant in this suit for same
amount.
That judgment not having been appealed
from. is final and definitive, and is res
judicata ON the question of the personal
liability of defendant. and the sheriff's ad-
Indication to him Of the property at the
amount Of the mortgage indebtedness, in,
Guiding mortgages, renders the property in
his hands, as third pOssessOr, subject to
plaintiffs mortgage.
For these reasons it is, therefore, ordered,
adjudged and decreed that the defendant.
Stephen Duncan, be condemned to pay to
plaintiff the sum of $1,000, with eight per
cent interest from January l, 1862, until
paid, and costs Of suit. and that the plain.
titf's mortgage on the Magnolia plantation,
as described in the act OF mortgage from
Campbell & Purvis to DR.. Stephen Duncan,
on file and in evidence in this case. be de-
creed to be executory against the defendant
as purchaser and third possessOr.
Suit is brOugh6 in the Fifth District Court
by RhOda E. White against Myra Clarke
Gaines for the sum of $780, 900. The petitioner
claims that she and j. w. White contracted,
about seven years ago. with the defendant,
to recover certain property for her as the
heiress of Daniel Clarke. and for this SER
vice they were to receive fifteen per cent of
the value Of the property they collected.
until the aggregate should amount to $780,
900. to secure the payment of which the de-
tendant drew a mortgage on all the recov
cred property, the mortgage now resting,
according to the plea of petitioner. on fifty
tracts OF land in this city. Petitioner be-
came the owner of the claim OF j. w. White
for valuable consideration.