
    Joseph V. Bacon & Son v. Thomas Maskell.
    The transfer and possession of a mortgage note will enable the transferree to obtain an order of seizure and sale—though the public act of transfer shows no acceptance by the transferree.
    Where the vendor has bound himself to raise certain mortgages on the property sold, he will not be entitled to ^n order of seizure and sale, unless he can show by authentic act that he has done so.
    APPEAL from the District Court, Parish of St. Mary, Voorhies, J.
    ACT OF TRANSFER.
    State of Louisiana, Parish of St. Mary.—Before me, Thomas A. Smith, a notary public in and for the parish of Si. Mary, duly commissioned and sworn, personally appeared Gyrus B. ff. Whelden, of said parish, who declared that he had transferred, and by these presents does hereby transfer to Joseph V. Baoon and Thomas H. Baoon, of Boston, Mass., partners in trade, doing business in said Boston under the name of Joseph V. Bacon & Son, a certain promissory note for one thousand, five hundred and fifty-one dollars and ninety-one and a half cents, signed by Thos. Maslcell, dated January 9, 1850, and payable one year after date to the order of said Whelden, with eight per cent, interest from maturity, the said note is secured by mortgage act of said MasIcell to said Whelden, passed before J. A. Dumartrait, recorder, on the 9th of January, 1850, and is signed “ne varietur” by said rocordor, to identify it therewith—and the said Whelden declared that he does also, by these presents, assign and transfer to said Joseph V. Bacon and Thomas H. Bacon his rights in and under said mortgage, to secure and enforce the payment of said note, hereby subrogating them to all his rights in said note, and in the mortgage given to secure the same, so far as relates to the said note, the consideration of this transfer is the amount of said note, the same being accounted for to said Whelden by said transferrees on settlement.
    Done, passed and signed at the parish of St. Mary aforesaid, in presence of William Ager and Williann 0. Dwight, competent witnesses, who have signed these presents with said appearcr, and me said notary, after due reading, this tenth day of April, in the year of our lord, one thousand eight hundred and fifty-one. 0. B. G. WHELDEN.
    WILLIAM AGER.
    WILLIAM 0. DWIGHT, Witnesses.
    A true copy from the original filed in my office.
    THOMAS A. SMITH, Notary Public.
    
      Dwight and Lea, for plaintiff.
    Maslcell, for defendant and appellant.
    Lea, for plaintiff
    —cited 7 M. R. 239 ; 1 A. 323 ; 5 A. 124.
    Maslcell, for defendant
    —cited 5 Rob. 85 ; 1 A. 323 ; 4 A. 152.
   Rost, J.

This is an appeal from an order of seizure and sale; the appellant seeks to have it set aside on two grounds.

1st. That the transfer of the note sued upon, from the original payee to the plaintiffs, although made by authentic act, is insufficient; because the plaintiffs were not parties to it, and their acceptance of it is not shown,

2d. That by the act of sale, out of which the note originated, the vendor bound himself to raise certain mortgages existing on the property sold, within a reasonable time; that the note was transferred to the plaintiffs, after its maturity and after a reasonable time had elapsed; and no recovery can be had upon it by them, unless they show that those mortgages have been raised.

Wo think the transfer and the possession of the notes by the plaintiffs sufficient to authorize the order of seizure—but the other ground appears to us well taken. Near eighteen months had elapsed since the sale when the order issued, and the payment of the note could not have been enforced, even in an ordinary suit, unless the plaintiff had shown that the mortgages, which the vendor had assumed to raise, had been satisfied and erased from the books of the recorder; the same showing is indispensable in this proceeding, and unless it can be made by authentic acts, the plaintiff must resort to an ordinary suit.

It is ordered that the order of seizure and sale appealed from be set aside, and that the costs in both Courts, since the filing of the petition, be paid by the appellee.  