First Nat. Bank of Abbeville v. Broussard

• Citation: 11 So.2d 602,202 La. 315
• Decision Date: 30 December 1942
• Docket Number: 36634.
• Court: Supreme Court of Louisiana
• Parties: FIRST NAT. BANK OF ABBEVILLE v. BROUSSARD et al.

11 So.2d 602

202 La. 315

FIRST NAT. BANK OF ABBEVILLE v. BROUSSARD et al.

No. 36634.

Supreme Court of Louisiana

December 30, 1942

R. J. Putnam and Wm. P. Edwards, both of Abbeville for relator.

Kibbe & Bailey, of Abbeville, for respondents.

PONDER Justice.

The plaintiff, the First National Bank of Abbeville, Louisiana brought suit against the defendant, Ursin B. Broussard seeking to recover on a note secured by a special mortgage calling for the sum of $1,829.37 with 8% per annum interest from December 1, 1934, until paid and an additional amount of 10% upon such principal and interest as attorneys' fees. The plaintiff is proceeding via ordinaria. A default judgment was rendered against the defendant for the amount of the note, recognizing the special mortgage, and ordering the mortgaged property sold to satisfy the judgment.

Upon the issuance of a writ of execution, the sheriff seized the property, and the heirs of Marie Rosa Broussard, the deceased wife of the defendant mortgagor, interposed an intervention and third opposition, alleging that they were the owners of an undivided one-half interest in the mortgaged property as heirs of Marie Rosa Broussard, deceased, and that the defendant was without authority to execute the mortgage insofar as their interests in the property were concerned. They asked to be recognized as the owners of an undivided one-half interest in the property; that the seizure be set aside as to their one-half interest in the property, and for $500 as attorneys' fees on account of the illegal seizure of their interests in the property.

In answer to the intervention, the plaintiff bank denied that the intervenors had an interest in the seized property except a residuary interest after the payment of the debts of the community existing between Ursin B. Broussard and his deceased wife. The bank alleged that the debt for which the note and mortgage were given was a community debt. By way of reconvention, the bank alleged that the intervenors made themselves liable for the debts of the community by accepting the succession of Marie Rosa Broussard, deceased wife of Ursin B. Broussard, including the debt represented by the note and mortgage, and asked for judgment in reconvention against the heirs of the deceased Marie Rosa Broussard for one-half of the amount of the note, interest, attorneys' fees and costs, with recognition of the right to proceed against the seized property for the payment of the community debt.

The case was tried on an agreed statement of facts. The trial court gave judgment in favor of the bank and against the intervenors, rejecting their demands; decreeing the debt sued on to be the debt of the community of Ursin B. Broussard and his deceased wife, and decreeing each of the intervenors liable for his or her virile share of one-half of the debt as heirs of Marie Rosa Broussard, deceased, with recognition of the right of the bank to proceed against the property to enforce the payment of the debt. From this judgment, the intervenors appealed to the Court of Appeal, First Circuit. On appeal, the judgment of the lower court was reversed and set aside, and the intervenors were decreed to be the owners of an undivided one-half interest in the property. The seizure of the property was set aside insofar as the undivided one-half interest of the intervenors was concerned, and the note and mortgage, forming the basis of the judgment rendered in the lower court, were decreed null and void insofar as they affected the interests of the intervenors. The reconventional demand of the bank was dismissed as in case of non-suit, reserving the right of the bank to proceed against the intervenors in an appropriate action. The plaintiff bank applied to this Court for the writs of certiorari and review which were granted. The cause is now submitted for our determination.

It appears from the agreed statement of facts that the property involved herein belonged to the community of Ursin B. Broussard and his deceased wife, Marie Rosa Broussard. The intervenors accepted the succession of Marie Rosa Broussard, deceased, unconditionally and were placed in possession of an undivided one-half interest in this property prior to the filing of the intervention herein.

Prior to the death of Marie Rosa Broussard, Ursin B. Broussard was an accommodation endorser on three notes payable to the plaintiff bank, viz., (1) a note of Ernest Broussard calling for $200 which was also endorsed by Vilia Romero; (2) a note of Odey Romero calling for $400 also endorsed by Vilia Romero; and (3) a note of Arthur Harrington calling for $1,054.74 which was also endorsed by Ernest Broussard and Odey Romero. Under the provisions of the notes, the makers and enforsers bound themselves in solido for their payment.

Marie Rosa Broussard died sometime in December, 1926. After her death, the three notes were renewed from time to time, and finally on December 29, 1930, Ursin B. Broussard executed a note to the plaintiff bank and a mortgage to secure it on the community property involved herein. Upon the execution of the mortgage note and mortgage on the community property by Ursin B. Broussard, the bank transferred to him the three notes originally endorsed by him.

From the facts in this case, it is readily seen that Ursin B Broussard has changed the liability...