Friendly Loans, Inc. v. Morris
| Decision Date | 29 June 1962 |
| Docket Number | No. 5610,5610 |
| Citation | 142 So.2d 810 |
| Parties | FRIENDLY LOANS, INC. v. Riley MORRIS, Jr., and Caretha Jackson Morris. |
| Court | Court of Appeal of Louisiana — District of US |
Ponder & Ponder, by Carver T. Blount, Amite, for appellant.
Palmer & Palmer, by Robert E. Palmer, Amite, for appellee.
Before ELLIS, HERGET and MILLER, JJ.
Friendly Loans, Incorporated instituted this suit against defendants, Riley Morris, Jr. and Caretha Jackson Morris, on a promissory note secured by chattel mortgage on certain furniture and prayed for judgment against Defendants in solido for the balance due on the note; for recognition of its lien and privilege on the property mortgaged; that the property be sold at public auction, with appraisement, and that the amount realized from the sale be credited pro tanto on the amount of the judgment and if not sufficient to pay same the unpaid balance thereof be executory.
Exceptions of no cause of right of action and of vagueness were filed by defendant Caretha Jackson Morris and following a trial of the issues on the merits the trial Court rendered judgment in solido against Defendants for the balance due on the note as prayed for, though the judgment did not recognize or enforce the lien and privilege alleged to exist by virtue of the chattel mortgage. The record neither discloses that Riley Morris, Jr. was cited and served with a copy of the pleadings; nor do the minutes reflect that a preliminary default was entered against him; nor was any appearance made by him during these proceedings. However, as no appeal from the judgment was taken by Riley Morris, Jr., there is nothing before us in reference to the judgment rendered against him. This appeal was taken by Mrs. Morris from the judgment rendered against her.
The note sued on provides:
'FOR VALUE RECEIVED, the undersigned in solido promise to pay to the order of said Lender, * * * (the actual amount of money lent and paid to the undersigned) in 19 successive monthly installments * * *.'
and it is signed by Caretha J. Morris and Riley Morris, Jr. in that order.
Defendant's (Caretha Jackson Morris) exceptions of no cause or right of action and vagueness were predicated on the contention that the debt sued on was one of the community; that she was now separated by judgment of court from defendant Riley Morris, Jr., and that she was not responsible for the payment of the debt because same was a debt of the community. In her answer to the suit on the merits she avers that she was asked to sign the note only for the purpose of waiving her 'homestead exemption rights' and that her signature on the note was obtained on the fraudulent misrepresentation on the part of petitioner that her signature was required for the sole purpose of waiving homestead exemption rights. Though Defendant in her answer refers to homestead exemption rights, she evidently had reference to the provision of LSA-R.S. 6:587 providing that no chattel mortgage or other privilege on household furniture then in the possession of the borrower shall be valid if the borrower is married unless same is signed by both husband and wife. As heretofore pointed out, the judgment rendered in this suit did not grant a lien and privilege on the furniture nor order the sale thereof, but is simply a judgment in solido against Defendants. True she maintains her purpose in signing the note and chattle mortgage was to waive her homestead exemption, there is no evidence in the record that representations were made to her by the loan company that such was the purpose of her signing the note and furthermore Caretha Morris testified when she signed the note and chattel mortgage she did not tell the loan company that was her purpose in executing the instrument. There, therefore, is no proof of any fraud practiced on defendant Caretha Jackson Morris by Plaintiff.
LSA-C.C. Article 2403 provides:
'In the same manner, the debts contracted during the marriage enter into the partnership or community of gains, and must be acquitted out of the common fund, whilst the debts of both husband and wife, anterior to the marriage,...
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Mitchell v. CIR
...of the community and be liable for such assumption out of her separate property. La.R.S. 9:103 (1950); Friendly Loans, Inc. v. Morris, 142 So.2d 810 (La.Ct. App.1962). But to extend Bender to require the wife to report the income would be destructive of the Louisiana system of community pro......
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