Cahn v. Ford

• Decision Date: 01 October 1890
• Docket Number: 279
• Citation: 8 So. 477,42 La.Ann. 965
• Court: Louisiana Supreme Court
• Parties: ADOLPH CAHN v. S. N. FORD ET ALS. S. LEVY, JR., INTERVENOR

8 So. 477

42 La.Ann. 965

ADOLPH CAHN v. S. N. FORD ET ALS. S. LEVY, JR., INTERVENOR

No. 279

Supreme Court of Louisiana

October 1, 1890

APPEAL from the First District Court, Parish of Caddo. Taylor J.

Wise &amp Herndon, for Plaintiff and Appellee.

Land &amp Land, for Intervenor and Appellant.

OPINION

MCENERY J.

The facts in this case are fully stated in the case of Levy vs. Ford, 41 An. 873.

On November 4, 1889, Cahn, the plaintiff, instituted this suit against S. N. Ford, the maker of the $ 7000 note which figures in the suit referred to, and against Wm. Winter, the pledgee and holder of the same, for the purpose of obtaining judgment for the sum of $ 3610.40, with 8 per cent. interest from March 1, 1888, and attorney fees.

This amount is the sum due Cahn by S. M. Ford, for which he held his note, and to secure which the $ 7000 note had been pledged to him. He asks for the foreclosure of the mortgage, securing this pledged note, and the sale of the property mortgaged to satisfy the same.

The defendants made no opposition to this suit. In fact they encouraged it, and the proceedings appear to be by consent.

Simon Levy, Jr., who held a special mortgage, subordinate in rank to the mortgage securing the $ 7000 note pledged to Cahn on the mortgaged property, obtained judgment against S. N. Ford, and the mortgaged property was advertised to be sold. Levy intervened in the present suit, alleging the above facts, and averred that the plaintiff was not the owner and holder of said note for $ 7000, and had no mortgage on said property, and could not institute said suit, and that, if he had any rights, he could not exercise them until the maturity of the notes held by Winter, said notes being described in suit of S. Levy, Jr., vs. Ford, No. 2962, on the docket of the District Court (41 An. 873).

He further shows that the mortgaged property is insufficient to pay his mortgaged debt and the prior $ 7000 mortgage held by Winter as collateral security, and that his interest is that Winter should have a preference in said $ 7000 mortgage note over any mortgage claim of plaintiff. He alleges the prematurity of the suit, and that the pledge in favor of plaintiff of said note has been lost by its surrender to Ford, who pledged it to Winter.

During the pendency of this suit, the mortgaged property was sold under the suit of S. Levy vs. Ford, and purchased by Levy.

There was judgment in favor of the plaintiff, decreeing that he be entitled to priority over Winter out of the proceeds of the sale of the mortgaged property and rejecting the demand of the intervenor.

The intervenor only has appealed. We are, therefore, only concerned with the judgment so far as it affects him.

The intervenor as the junior mortgage creditor has an interest in attacking the prior mortgage, either to destroy it or to reduce its amount.

There is no evidence in the record to show that the amount claimed by Cahn as due to him by Ford, for which the $ 7000 note was given him as collateral, is not a just debt. It is unaffected by the pleadings or the evidence. The $ 7000 collateral note has had its status determined by this court in the suit of Levy vs. Ford, 41 An. 873.

In that suit it was decided that it was a legal and valid note, and that Ford had a right to pledge it, as it had not been extinguished when it was returned to him by the parties to whom he had previously pledged it as...