237 F. 737 (5th Cir. 1916), 2920, Roger v. J.B. Levert Co.

Docket Nº:2920.
Citation:237 F. 737
Party Name:ROGER et al. v. J. B. LEVERT CO., Limited, et al. In re JOHN T. MOORE PLANTING CO., Limited.
Case Date:December 13, 1916
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 737

237 F. 737 (5th Cir. 1916)

ROGER et al.

v.

J. B. LEVERT CO., Limited, et al.

In re JOHN T. MOORE PLANTING CO., Limited.

No. 2920.

United States Court of Appeals, Fifth Circuit.

December 13, 1916

Page 738

The John T. Moore Planting Company, Ltd. (hereinafter called the Moore Company), the bankrupts, were the owners of three large improved sugar plantations, situated in the parishes of Terrebonne and Lafourche, and of a sugar factory and all the buildings and improvements, mules, implements, and other appurtenances of a going business. On March 11, 1911, they mortgaged their property to the J. B. Levert Company, Ltd., and in June, 1914, the Levert Company caused the mortgaged property to be sold in foreclosure proceedings, by what is called, in Louisiana law, 'executory process.'

In July, 1914, shortly after the foreclosure sale, the Moore Company instituted a suit against the Levert Company and its liquidators (it having previous to that time gone into voluntary liquidation), for the purpose of annulling and setting aside the foreclosure sale, on the ground of nullities therein. The Levert Company, in their answer in this suit, set up a counterclaim, or, as it is called in Louisiana law, a 'reconventional demand,' on promissory notes, praying that if the foreclosure sale should be annulled, and the mortgaged property should be declared to again belong to the Moore Company, then, in that event, that they (the Levert Company) should be given judgment against the Moore Company for the full amount of the original indebtedness due by the Moore Company to them and secured by the aforesaid mortgage, with

Page 739

recognition of full mortgage rights. This converted the suit into an ordinary suit in the state court of Louisiana, and judgment was rendered in same in February, 1916, adjudging that the foreclosure sale was illegal and null, and that the mortgaged property therefore belonged still to the Moore Company. In the same judgment and on the reconventional demand of the defendant based on the promissory notes, it was adjudged that the Levert Company should have judgment against the Moore Company for the amount still found to be due on the original mortgage indebtedness, including interest from the last day of payment of interest until paid. Judgment was also rendered in favor of the Levert Company for additional amounts of taxes paid by the Levert Company on the mortgaged property during the time they were in illegal possession thereof. And further:

'It is further ordered, adjudged and decreed that the aforesaid mortgages of the J. B. Levert Company, Ltd., in Liq., and its liquidators as security and for the payment of the said sum of one hundred thousand, one hundred and twenty-two and 7/100 dollars with interest, attorney's fees and costs, as hereinafter set forth, be and the same are hereby recognized to operate, exist and bear upon the following described property, to wit: (Description of property omitted.) * * *

'It is further ordered, adjudged and decreed that in accordance with law, the said properties be seized and sold at public auction to the highest bidder for cash, without appraisement, as provided in said act of mortgage before Edgar Grima, of date March 9, 1911, with which said notes are identified, and that out of the proceeds of said sale J. B. Levert Company, Ltd., in Liq., and its said liquidators, be paid by privilege, preference and priority over all other parties, the said sum of one hundred thousand one hundred and twenty-two and 7/100 dollars, with interest and attorney's fees as hereinabove set forth.

'It is further ordered, adjudged and decreed that there be judgment in favor of J. B. Levert Company, in Liq., and its said liquidators, plaintiffs in reconvention, and against said John T. Moore Planting Company, Ltd., defendants in reconvention, in the full sum of six thousand and sixty-one and 86/100 dollars, with interest at the rate of eight per cent. per annum from May 12, 1913, on three thousand, two hundred and thirty-two and 86/100 dollars thereof, and with like interest from March 26, 1914, on three thousand, eight hundred eighteen and 21/100 dollars thereof, being the amount of state, parish and levee district taxes for the years 1912 and 1913, respectively, assessed against said...

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