Levy v. Fitzpatrick - 40 U.S. 167 (1841)
U.S. Supreme Court
Levy v. Fitzpatrick, 40 U.S. 15 Pet. 167 167 (1841)
Levy v. Fitzpatrick
40 U.S. (15 Pet.) 167
ERROR TO THE CIRCUIT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA
In the circuit court, Edmund and David Fitzpatrick, citizens of the State of Virginia, filed a petition stating that the plaintiffs in error, Barnett and Eliza Levy, citizens of Louisiana and resident in the Eastern District of Louisiana, were indebted to them
in solido in the sum of $12,100, with interest at the rate of ten percent until paid from the second day of February 1838. That on 26 March, 1838, Barnett Levy, Eliza Levy and one Moses E. Levy (the latter being then a resident in the State of Mississippi, and not within the district of Louisiana) gave their obligation, duly executed by them, to the said Edmund and David Fitzpatrick, binding themselves and each of them in solido to pay to them the said sum of $12,100 on 2 February, 1839, with interest, &c., "negotiable and payable at the residence of the said Barnett Levy, in the State of Louisiana." The petition alleged that a demand of payment of the said obligation had been duly made at the residence of Barnett Levy, but the obligors had wholly failed to pay the same. The petition stated that a public act of hypothecation and mortgage, at the time the obligation was given, was executed by M. A. Levy, Barnett Levy and Eliza Levy, by which certain real estate and slaves were given in pledge for the security of the said debt, which was duly recorded in the proper office in the Parish of Madison in the State of Louisiana. The mortgage was joint, not joint and several. The petition asked that executory process might issue in the premises and that, after due proceedings, the land and slaves might be sold to pay the debt and interest due the petitioners under executory process. The petition also alleged that the act of hypothecation imported a confession of judgment and entitled the petitioners to executory process. The bond and a certified copy of the act of mortgage were annexed to the petition.
The mortgage, executed by Eliza Levy and Barnett Levy in their proper persons and by Barnett Levy under a power of attorney from M. A. Levy which was not annexed to nor filed with the mortgage, stipulated that one-third of the debt should be paid on 2 February, 1839; one-third on 2 February, 1840, and the residue on 2 February, 1841,
"and on failure to pay the said note in the three several installments as aforesaid, or any one thereof, at its maturity, they hereby empower and authorize the said Edmund Fitzpatrick and David Fitzpatrick, or either of them, to avail themselves of
all the advantages of this special mortgage and to proceed to seizure and sale of the said lands and slaves hereby mortgaged by executory process, according to law, for the whole sum of $12,100."