Robert Cooper Grier

“ It is further contended that the original debt of Stafford and wife (if any ever existed) was extinguished by novation, one of the modes by which obligations may become extinct. See Louisiana Code, art. 2126 and 2181, and notes in Pothier on Obligations, part 3, chap. 2, No. 546, vol. I, 339.
The debt (if any) being extinguished as prescribed by art. 2126, the mortgage being only a security for its payment, must also be extinguished. See articles 3251, 3252, 3374, Louisiana Code.
If a debt ever existed it was extinguished by novation, according to the provisions of art. 2185 Louisiana Code. ”

“ It is admitted, that William M. Stafford, James A. M'Waters, and Isaac Thomas reside in the state of Louisiana, and out of the jurisdiction of the court. And it is contended that, as the complainant cannot therefore compel them to become parties, he is utterly remediless, notwithstanding the original mortgagors are in court, and have in their possession the property subject to the lien of his mortgage.
It is true that, if these persons had been within the jurisdiction of the court, they might properly have been made parties ”

“ The question which arises on these facts is, whether this sale to William M. Stafford, and his twelve months' bond, is a novation or extinguishment of the original mortgage. If it was, the complainants should have filed their bill on the twelve months' bond, which operated as a judgment and mortgage on the property, and not on the original mortgage, as has been done in this case.
'A novation takes place in three ways' (Louis. Code, art. 2185.) '1st. When a debtor contracts a new debt to his creditor, which new debt is substituted to the old one, which is extinguished. ”

“ If it were true that Isaac Thomas still retained his claim to forty-eight of the slaves included in the mortgage, it would be no reason why the complainant should not be entitled to his decree as against the respondents, leaving Thomas to prosecute his claims, if he had any, at such time and in such manner as he might elect. ”

“ And the running of the time was sufficiently interrupted by the proceedings upon the twelve months' bond of William M. Stafford against the mortgaged slaves, in February and March, 1845. Print. R., 350, 354, 440, 441, 444.
5. The complainants have used all the diligence in their power, under the circumstances of the case, to enforce their demand, and are not culpable for laches.
V. The defense of coverture is also insufficient, because by the laws of Louisiana, Mrs. Stafford was authorized to become surety for her husband's debts by renouncing her privileges ”

“ A chancellor will not permit a party to plead his own fraud to defeat the equity of the complainant. This plea must therefore be overruled.
V. The court below decided the three points of defense which we have just considered against the respondents, but dismissed the bill of complainants for want of proper parties. ”

“ IV. The matters of defense set up by Mrs. Stafford are not sufficient to prevent this court from pronouncing a decree against her. The first of her defenses consists of the bar of the statute of limitations of Texas, passed Feb. ”

“ Troplong, Comm. de Privil eges, Nos. 404, 697, 778, 840. 2; Expropriation Forc ee, No. 29; Proudhon, Dom. de Propri et e, Nos. 92, 95, 719; Dig. XX., 1 fr., 16, § 4; Civ. Code La., §§ 461, 467, 537, 3148, 3371. ”