New Orleans Republican., 1873-03-25

mony is to be taken out OF court by consent
| of parties.
The following is the decision of the Judge
on the point raised:
The defendant, during the trial of this
| cause, offered to prove certain allegations
| in his answer to wit: That the plaintiff III
purchasing tie property herein in C0ntro-
versy at sheriff. sale. did so as agent for
| the use of the defendant. and that the rep
| reSentatlOns of the former as to his agency
| caused the friends and neighbors Of the de-
fendaDts to refrain from bidding on the
property III competition with the bidders
present; that il the absence OF 5ucn COM
! petition tho property was SOLD fOc pilce
greatly below its value. Plaintiff s counsel
| objected to the evidence. and urged Its IN.
| admissiblIty on the ground that 1t was Of
tered against or beyond the contents OF the
| sherifl7s deed of sale to plaintiff.
! As general rule. written titles or agree.
| ments are conclusive between those who are
| parties or privy to them, and they are
! estopped from contradiCtlng them; but third
| persons, not parties to an act, may prove
| its stimulation by parole. The defendant.
| not having been party to the deed OF sale
| between the sheriff and Magner. had a
| right to prove by parole that the latter.
| who purchased at the forced sale. held him.
self forth as purchasing for defendant, and
| fendant's money. though Magner took the
act of sale in his own name. Hall vs.. Sprigg,
NJ, 2H.
Magner denies that he purchased the
property as the agent of Coleman, and it
the latter should fail to make good his allie
CATION of this fact, he would have a right
to provo, as he alleges, that Magner at and
before the sale aforesaid made untrue and
fraudulent representations, which prevented
other persons from bidding, and by which
he has himself got the property at an under
valuation.
The admission of psroi evidence 60 defeat
written contracts by the proof Of fraud, is
rule OF universal Jurisprudence. The plea
of fraud is seldom or lever established, or
made available, if required to be proved by
written evidence. 1t is susceptible Of parOl
proof only. The dishonest man, in over
reaching and detrauding his neighbor, does
so not by the written act TO which they both
atfiX their signatures, but by the unwrltten
representations and deceit resorted to to
induce his victim TO bind himself in writing,
Article 2256 OF the Civil Code, which iorbids
the introduction of evidence against or
beyond what is contained in public acts.
does not apply to contracts IN fr0udem }egiS;
a party may show by parol the real nature
of such contracts. firemens Insurance
Company rs. CrossmaD, Rob, J0S.
If parties to public actmay prove fraud
and error by parol o .fsrttori - person who
is not o party to such act can be received to
prove fraud against q written instrument
conveying real property, when the party
offering such testimony may DO injured by
such fraud in rights which existed at the
time of its perpetraticn see no sufficient
grounds te exclude parol evidence going TO
prove the allegations of the defendants
answer. The objection is. therefore. over
ruled.
Fift, District Court.
John Mcdowell, guardian, etc, va. Nrs.
John A. Grow ct als-ln this case Judge
Cullom has rendered the following opinion:
The question is, can this court award the
plaintiff a judgment for $l4,l9S, with privi.
lege and special mortgage on all real estate
described in his petition to operate solidar-
lily on Mrs. Grow and Henry Schneider,
both Of whom are the purchasers and pos
SCISSORS OF certain real estate in this city
which Is subject to the privilege and special
Mortgage SGT up by petitioner. As to the
personal liability of Mrs. Grow there can
be no doubt, as there is none as to the mort
gage and privilege.
She contends that the property alone
owes the debt, and that she is not person
ally liable for any portion Of it,
l think the article 683 OF the Code OF
Practice settles the question without carry
ing sur Investigations any further.
1t says: "But if there exist on the prop
erty any privileges or special mortgage in
favor Of other persons than the Judgment
creditor, and which are preferred 70 him,
the sheriff shall announce that the purcha-
scr shall be entitled to retain in his hands,
cut Of the price for which the property shall
be sold, tho amount required to satisfy the
privileged debts and hypOthecatiOns to
which the property sold was subject; but
thi t;he shall be bound TO give his obi
g>tloR Tor the surplus of the purchase mon
ey, II there be any, and subscribe his Obliga-
ton at twelve months credit. with security
- stated above"
Article 67S Code Of Practice, declares that
"vhen there exists q mortgage or privilege
on the property put up fer sale, che sheriff
shall give notice before he commences the
crying that the property is sold subject TO
all privileges and hypothecations OF what
soever Kind they may be with which the
same IS burdened, and with the condition
that the purchaser shall pay into his hands
wbaeVeT portion Ofthe price for which the
property may be adju6icated which may
exceed the amount of the privileges and
specia! mortgages to which said property is
subject
Both ,he.e article. imperstively require
thst the property sold shall bring enough |
to pay the privilege and special mortgages |
having Che priority.
2ho sheriff in such cases can not exact |
the cash payment of the amount of such
prior mortgages. and it is left with the pur-
chaser |
II, then, ne IL permitted 20 retain that |
which but for him would have been paid by |
some ether purchaser, the eject of this right |
to retain is to substitute one debtor for |
another with the same security for the debt |
itself.
In becomin. the substitute Of The previous
debtor che purchaser exercises his own free |
will, and with the notice previously given !
and With present knowledge OF
the law.
The money is left with him while ne en-
Joys the use of the property. and there il no
reason why he should be exempt from per /
.Onal liability. The debt il EN- !
physically personal, and secsred by mort |
gage. u the property is deteriorsted and
can not command the sum vi the debt, she |
is liable fer the deficit.
Judgment as prayed for.
LaH