author: Preston, J.

text:
    B. F. Ludwig v. John Kohlman.
    Where the defendant moves to dissolve an injunction for matters appearing on the face of the record, the court may allow damages under the act of March 25th, 1831. The plaintiff cannot, by submitting to a non-suit,, avoid the damages which are to he regarded as a claim in reconvention.
    APPEAL from the District Courtof Jefferson. Clarke, J.

      T. A. Bartlette, for plaintiff.

      A. N. Ogden, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff alleges, that a judgment having been rendered against him, in favor of the defendant, by the Third District Court of the State, he took a suspensive appeal to the Supreme Court; that his appeal was afterwards dismissed by the district court, and from this judgment of dismissal a suspensive appeal was granted to him.

He further alleges that, notwithstanding his appeals, the defendant had obtained execution on this judgment against him, and that the sheriff of the parish of Jefferson had seized and was about to sell his property, to the irreparable injury of his rights.

The defendant in injunction took a rule on the plaintiff, returnable the 12th of January, 1850, to show cause why the injunction granted should not be dissolved, on the ground that the petition set forth no legal cause for the injunction, and that the same was fraudulently obtained; and moreover prayed for ten per cent interest, and twenty per cent damages, on the amount of the judgment enjoined against the plaintiff and his securities in solido.

On the 12th of January, 1850, the parties appeared, and by consent continued the rule until the 26th of January ; and on the same day the defendant filed his answer to the petition for an injunction. In his answer he reiterated the grounds taken in the rule for setting aside the injunction ; and moreover alleged that both the appeals which the plaintiff pretended to have taken had been decided against him by the Supreme Court. He further alleged that the appeal taken by him from the judgment on the rule to set aside the first appeal, was evidently taken to gain an advantage from an appeal which he was aware could not be sustained.

On the 26th of January, the day fixed for the trial of the rule, the plaintiff did not appear to prosecute his injunction, but the defendant proceeded to try his rule, and the court, by an examination of the record of the suit between the parties, was satisfied that there was no ground for the injunction, but that it had been obtained for delay, and by it plaintiff had arrested the execution of a judgment against him for nine hundred dollars with five per cent interest from the 4th of January, 1849. He therefore dissolved the injunction, and condemned the plaintiff and his securities to pay the defendant one hundred and eighty dollars, being five per cent additional interest on the judgment enjoined, and fifteen per cent damages.

The plaintiff has appealed, and assigns for errors: 1st. That as the plaintiff did not apper at the trial, no judgment but a judgment of non-suit could have been rendered. 2d. That the pleadings do not authorise the judgment. 3d. Neither the rule nor the answer contains any denial of the allegations in plaintiff’s petition.

The plaintiff referred to the record alone in the original suit to maintain, and the defendant to dissolve, the injunction. It was therefore a proper case to be tried on a motion to dissolve the injunction for matters appearing on the face of the papers; and whatever appeared on the face of the papers which showed that the injunction should bo dissolved, was a proper matter of enquiiy. Hebert v. Jolly et als. 5 L. R. 52., It was therefore the duty, of the judge, on the trial of the rule to dissolve the injunction, to examine tie record in the original suit as well as the pleadings in the suit for an injunction : which he did ; and by the examination of the whole, found the reasons for his judgment, which we cannot pronounce erroneous because the original record is not before us.

The act of 1831 accorded to the defendant in injunction interest and damages on the dissolution of the injunction. It does not make the distinction for which plaintiff’s counsel contends, between an injunction sought to evade forever the effect of a judgment and one to prevent its effects temporarily, exempting the plaintiff in injunction in the latter case from damages; and we see no reason for the distinction.

The defendant had a right to claim interest and damages on the trial of the motion to dissolve the injunction; and the plaintiff could not deprive him either of the trial of the rule or such inter,esf and damages by failing to appear and prosecute his suit for an injunction.

A plaintiff cannot, by discontinuing or submitting to a nom-suit, .prevent a defendant from trying his claim in reconvention. The claim of a defendant in an injunction for interest and damages, if not a claim in reconvention, is so analogous that the same rule as to trial may with great propriety be applied to both.

The judgment of the district court is therefore affirmed, with costs in both courts.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    R. C. Stockton v. T. R. Hyde.
    The sheriff holds property seized under attachment for the benefit of whom it may concern. If the attaching creditor succeeds in his suit, the rents and profits dyriag the attachment belong to him to the extent of his claim, and he may recover the same in a direct action against the tenant if he has not paid the rents to the sheriff.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Alexander T. Steele, for plaintiff,
    contended : Hyde collected $3320 rents of lot (? apd part of 10, from the 6th day of June, 3,842, to 1st April, 1849 ; he was not the owner of those lots ; on the contrary, they were .seized in 1841 by Stockton, under an attachment which was decreed by final judgment of this court to be good against both Craddick and Hyde. Now, the fruits of property belong ,to its owner. C. C. 493. Hyde was not owner, and therefore was not entitled to them ; he has received that which belonged to another; he is bound •to restore it, C. C. 2279. His liability to pay is fixed by the existence of the facts we have stated; the only question which remains is, where shall he pay it ? or to whom is he liable ? Ordinarily, compensation for the use of property ,or fruits are d.ue to its owner ; but there is an exception to this rule when property is under seizure; then the fruits and revenues belong to the person making the seizure, (C. C. 457,) to be credited, of course, upon the debt for which a seizure is made ; or, in other words, a seizure of property is aseizure .of the fruits and revenues thereof; and a seizure of this property under an attachment took with it the rents; it must be apparent then, that Hyde owes the sum of $3320 for the rent of this property, and that this sum, when paid, must go to Stockton, until the amount of his judgment against Craddick shall be satisfied.
    The petition sets forth the amount of that judgment, the amount satisfied, and the value of every paificle of property which was bound for its payment, and shows that if we get all, and what we claim from Hyde, there will still be a large amount of the judgment unsatisfied, and which must for ever remain so ; consequently, the proceeds of every portion of the property seized (whoever may be the proper person to grant acquittance,) must be paid to Stockton alone, in satisfaction of the judgment against Craddick. So far as Mr. Hyde is concerned, the judgment of the co.urt, i.n case of his opposition to the sale of the property, .takes away all power of making a contest in regard to the fruits of lots 6 and part of 10. By that judgment Stqckion’s attachment was sustained, and Hyde’s claim to the lots disallowed, or it was held, that Stockton’s seizure of the property in Januaiy, 1841, was good, especially against Hyde; now, the fruits and revenues of the properly belong to its owner, (who in this case is the seizing creditor,) and a decision in regard to his right to the property is final as to the revenues of the property accruing during the litigation. As to the right which Stocktonhaa, either directly or indirectly, to claim this sum of money from Hyde, there can be no doubt in the minds of the court.
    But it was urged in argument in the lower court, that if Hyde owes the amount for which he was sued, he owes it to the sheriff as depositary and not to the plaintiff; and if the plaintiff has rights, they are against the sheriff as an unfaithful depositary, and not against Hyde. This argument might answer at common law, where the plaintiff is bound down by certain forms of sueing, and can go no other way but in that marked out for him. Here the practice, or law of practice, is altogether different; here, as in courts of equity, it is not necessary for a man to show that the legal title of a thing or chose in action is vested in him, in order that he may have a right to, for, or upon it; but the veiy existence of a right gives authority to the party holding that right to claim its enforcement from the competent tribunals. Stockton has undoubtedly shown, that he had a right to have this debt for the rent which was collected by Hyde appropriated to the payment of his judgment against Craddick ; and until that judgment is fully satisfied, he has a right to claim that the property attached should be applied to its payment.
    The sheriff has no personal interest in this matter; his only interest is as depositary; and because he is responsible as depositary, he may sue for the property given to his care; otherwise, he could not sue; and even when he sues he cannot obtain a judgment in his own favor, but only a judgment requiring that the property or debt be applied to pay the judgment of Stockton v. Craddick. In fact, Stockton is the more suitable party to sue, and he has at least a clear right to do so. See Pothier Traité du Contrat de Depót, 91, 92, 93, 99.

      Craddick also has rights in this matter : he may sue, but it is not for money to be paid to him, but to have the property attached and its proceeds applied to the satisfaction of the judgment of Stockton v. Craddick. Stockton, Craddick and the sheriff are each interested, by their relative positions, in seeing the property applied to pay the judgment of Stockton v. Craddick ; they each have aright to the aid of a court of justice- to enforce this payment; but in sueing, Stockton must show that his judgment is unsatisfied ; the sheriff must show that he will be responsible for the loss of the property; and Craddick, being the residuary, has a right in all cases to sue.
    In this case the sheriff, who had charge of the property, and neglected to collect the rents, has gone out of office and is no longer a depositaiy; and, although his responsibility continues so far as to oblige him to pay damages, it is with me a matter of great doubt, whether he could collect this sum from Hyde even if he proved the facts we have set forth, unless he also showed that he had paid the damage to the parties entitled to claim it. It is also a matter of doubt, whether the present sheriff has the authority other than that conferred by the fi. fa. to collect rents which his predecessor failed to collect; his right to collect the rents at all is derived only from his responsibility as depositaiy, and fre is not responsible for those rents which it was not his duty to collect, and which were not paid to him by his predecessor. Stockton, beyond a doubt, has a right to claim that the rents collected by Hyde be paid to the satisfaction of his judgment; and we think we can come boldly into court, and claim that by a direct action which we can claim by a circuity of action. There is an old maxim, that “ the law abhors a circuity of action,” which we invoke here in our favor.

      Benjamin and Micou, for defendant,
    contended : The suit is for rents of property, which the plaintiff alleges, he attached for debt of Craddick, and which eventually was sold for the debt. The rents claimed are said to have accrued between the attachment and the sale, and the allegation is, that the defendant was all that time wrongfully in possession. The defendant excepted, that no ground of action was shown in the petition ; and the exception being maintained, the plaintiff appealed.
    In support of the opinion of the lower court, we submit : 1st. That the plaintiff does not pretend to have been owner of the lots in question during the time the rents accrued. 2d. That as attaching creditor, he could have no right of action. As plaintiff, he has only to look to the sheriff. If the sheriff neglected his duty, and permitted a third person to hold property which he ought to have held and administered, then the plaintiff has his action against the sheriff, but not against the defendant, with whom he had no privity or contract.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action for the recovery of the amount of certain rents of lots, which the plaintiff bad attached as the property of Craddick, and which was sold under tho judgment which he obtained in the suit of attachment, The rents are said to have accrued between the attachment and the sale under execution. It is alleged, that under a pretended sheriff's sale, the defendant, pretending to have acquired title and possession, received the rents and revenues of said lots, and prevented the sheriff and the petitioner from collecting and receiving them.

The plaintiffs petition was dismissed in the court of the first instance, on the ground that the petition disclosed no cause of action; and on the appeal it is contended, that the plaintiff, as attaching creditor, has no right of action against the defendant, but that his remedy is exclusively against the sheriff. By the service of the attachment, the sheriff was in possession of the lots for the benefit of whom it might concern — the attaching creditor or the other-parties in interest. The rents accruing from the possession, it appears to us, belonged to the party for whose benefit the possession was held. Code, 457. C. P. 656, 658. The debtor of the rents owed the sheriff merely as the bailee of this party, whose right was established by the judgment on the attachment. The attaching creditor is not obliged to take his recourse against the sheriff, who may not be, perhaps, in default, but has his direct action against the defendant, as the receiver of money belonging to him.

The judgment of the district court is reversed, and the case remanded for further proceedings ; defendant paying costs.


author: Slidell, J.

text:
    McIlvaine and Hayden v. Armfield, Executor.
    Where one joint owner of a plantation agrees with the other to receive a fixed compensation per annum for his interest in the plantation, such an agreement does not constitute a partnership. It is merely a lease of the joint interest.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Stockton and Steele, for plaintiff.

      C. T. Stewart and Elmore and King, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The object of this suit is to make the succession of Franklin liable for the amount of a bill for bagging and rope sold by the plaintiffs to Francis Routh, and used upon a plantation owned at the time by Routh and Franklin, upon the ground that Franklin was at the time a partner of Routh, and that the goods enured to the use of the partnership.

The plaintiff propounded to the defendant, Franklin?s executor, the following interrogatories : Did not a partnership exist between Isaac Franklin and Francis Routh in the year 1835? Were they not engaged at the time in planting in partnership? Did not Francis Routh have the management and control of the plantation which they cultivated in partnership ?

The defondant answered, that Franklin was a joint owner with Routh of a plantation and slaves in 1835, but “he did not think that a partnership existed between them at that time, further than being joint owners of a plantation and slaves, if such be a partnership.” “ That to the best of his knowledge and belief said Frandlin had hired or let his share in the plantation to Routh for the sum of $20,000 annually, which the said Routh was to pay the said Franklin at all events, without regal'd to the profits or the losses arising from the working of said plantation; Routh controlling and managing the plantation, bearing all expenses and receiving all the proceeds thereof, on condition of paying Franklin an annual sum without fail or contingency, but does not think that a partnership in planting existed between them, further than the arrangement stated above, if such be a partnership in planting.”

It is clear that the mere joint ownership of the plantation and slaves did not creata partnership between Franklin and Routh. C. C. 2777.

It is also clear that the agreement disclosed by the answers did not create a partnership, neither inter se nor as to third persons. There was no communion of profits. Routh was to have the entire use, management and profits of the estate, and bear its burdens; and on the other hand Franklin was to have a stipulated annual sum, unaffected either by profit or loss. Routh was the lessee, and not the partner of Franklin.

ITave these answers been contradicted? If not, the plaintiff is bound by them. We concur with the district judge in the opinion that they have not been overthrown by the other testimony in the cause. Two witnesses, to whose testimony exception was not taken, state that Franklin had asserted the existence of such an arrangement as the executor disclosed. It is said by two witnesses that it was reputed that they were planting in partnership. One of them says that this repute was general; the other, that he cannot so assert. That any thing had been said or done by the deceased to authorise such reputation does not appear. The alleged reputation seems to rest upon tho joint ownership.

It is not shown that the plaintiffs contemplated at the time the liability of Franklin, or that the goods enured to his benefit.

The judgment of the district court is therefore affirmed, with costs.


text:
    Jose Pi v. Manuel Vidal.
    In an action on a promissory note evidence will not be received in support of a plea in reconvention not necessarily connected with the original demand, or in support of a plea in compensation where the sum is not alleged to have been liquidatsd.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Z. Latour, for plaintiff.

      J. M. Wolf, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

This suit is upon the defendant’s promissory note. The court did not err in refusing to hear evidence under the pleas of reconvention and compensation. The demand in reconvention, as pleaded, was not “ necessarily connected with the main action and incidental to the samenor was the claim pleaded in compensation alleged to be liquidated. See C. P. 375. Lacoste v. Bordue, 7 N. S. 517. C. C. 2205.

The judgment of the district court is therefore affirmed, with costs-


text:
    Succession of U. B. Pehan.
    By tlie act of 2'6th of March, 1842, an executor is bound to pay over to tlie Treasurer of the State the amount of the tax imposed on foreign heirs, legatees, ¿te., and will not be discharged from so doing by showing that he has appropriated the money to other purposes. Execution may issue against him on a judgment upon a rule taken against him in behalf of the State Treasurer.
    APPEAL from the Third District Court of New Orleans, Kennedy, S.

      H. Griffon and W. W. King, for plaintiff.

      L. Castera, for defendant.
   The judgment of the court was pronounced by

Preston, J.

On the 13th of June, 1849, judgment was -signed homologating, after amendment, the account and tableau of distribution filed by Hypolite Gilly, the testamentary executor of the deceased.

A claim of the State for the tax of ten per cent on the amount due to foreign heirs and legatees, imposed by the 4th section of an act approved the 26th of March, 1842, was fixed by the judgment at thirteen hundred dollars, was allowed, and indeed declared, to be a privileged debt upon the estate on the motion of the attorney of the executor of the will.

On the 26th of October, 1849, an attorney of the State Treasurer took a rule on the executor to show cause why a writ of fieri facias should not issue against him personally for the amount of the claim of the State of Louisiana, which he alleged the executor refused to pay. The rule was made absolute, on proving that the claim had been demanded from the executor without success. And from the judgment to that effect, signed on 25th of November, 1849, the present appeal has been taken.

The judgment homologating the tableau of distribution and account of the executor was rendered on the motion of the executor’s counsel. It was not necessary therefore that he should have been notified of it.

The act of 1842 bound the executor to retain in his hands and pay over into the treasury himself the amount of the tax imposed by the act. See also the case of the Succession of George, 4th Ann. 224. He had in his hands, as appeared by his account, $6028 14. All the debts and charges against the estate, including that of the State, amounted to less than that sum. The executor erred in paying legacies to the amount of $2750 before paying the tax due to the State; and as to the State, the-money is to be considered in his hands. The articles 993 and 1057 of the Code of Practice authorised an execution against him personally for his failure, after legal demand made, to pay the claim of the State established by the judgment homologating his tableau and account.

The execution was properly ordered by the district court, and its judgment is affirmed, with costs in both courts.


text:
    David Barbour v. Jerome Bayon.
    A bank check Wlien payable to order is negotiable, and the endorser is liable, not as a mere transferee, but as the endorser of a bill of exchange*
    Bank checks are not entitled to days of grace, being payable immediately on presentment.

      APPEAL from the Fifth District Court of New Orleans, Buchanan, J. C.

      Roselius, for plaintiff,
    contended: This suit is brought against the defendant as the endorser of a check, payable to his order, on the Mechanics and Traders’ Bank. The presentment, demand of payment, protest, and notice of the dishonor of the check were proved, not only by the notarial protest and certificate of notice, but by the testimony of the person by whom the demand of payment had been made ; and the notice of the refusal to pay for want of funds was given to the defendant in person. There is no defence whatever in the case, and this appeal cannot have been taken for any other purpose than delay. The judgment of the district court should therefore be affirmed, with ten per cent damages as for a frivolous appeal.

      T. A. Bartlette, for defendant,
    contended: This is an action against the drawer and endorser of a bank check. Plaintiff avers presentment, non-payment and notice to the endorser. The endorser pleaded the general issue; and on judgment being rendered against him, he appealed.
    The first question that arises is: what was the nature of the obligation of the endorser of the check? We urge that he incurred no liability. That bank checks like that sued on are drawn and taken on the supposition that the drawer has funds in bank to meet'them; that the credit is given to the drawer alone; that in receiving such checks, the endorsement is not considered as having any other effect than as an assignment of the check. The endorser is the transferrer of the right which the check gives to receive so much money. He warrants nothing but the existence of that right; not the solvency of the bank nor of the drawer. C. C. articles 2616, 2617. If the endorser be liable in case the check be dishonored on due presentment and notice, such liability must rest on the similarity of checks with bills of exchange. The consideration of this brings us to another question, as to presentment and notice of dishonor.
    If the endorser is to be held liable by the rules applicable to bills of exchange, those rules must be adhered to throughout the case. The check then was entitled to grace and could be protested only at the expiration of the three days. Brown v. Lusk, 4YergerRep. 210. Marker v. Anderson, 21 Wendell 372, The check sued on is dated October 5th, 1849, and it is alleged was presented and protested for non-payment the same day.
    We next come to the consideration of the alleged presentment, protest, notice, See. The act of protest and certificate of notice offered in evidence by the plaintiff are clothed with all the forms of law, and if they are what they profess to be, would be conclusive. But they are completely destroyed by the testimony adduced. Two witnesses state that on the 8th or 10th of December, 1849, after the institution of this suit, and two months after the alleged protest, they went to the office of the notary and saw the original act of protest; that it was not then even signed by the notary, and by only one witness. It is admitted that the signatures of the witnesses to the protest and certificate offered in evidence were affixed after the institution of the suit. The demand on which the protest was made, not by the notary, but by his clerk. So we see that there was no protest, notwithstanding the notary’s certificate. To enable the notary to protest, he must make the demand himself, or by his lawful deputy. The demand in this case was not by a deputy, but by a clerk. To be a protest it must be recorded and signed by the notary and witnesses. This was not recorded nor signed at the time it purports to have been made. If there was no protest there could not be any notice of protest. So the case stands precisely as if the notary protest and notice of protest had never been heard of. Acts of 1821, 1827, concerning protests and notice. 17 L. R. 479. 19 L. R. 447. 1 R. R. 66. 6 R. R. 276. 1st Ann. 95. 3d Ann. 121.
    Now Jet us see what is the evidence of presentment, and notice of non-payment, beyond the protest. Duplantier says he presented the check, that it was not paid, and the next day he gave a written notice of protest to Bayon, but did not tell him the check had been dishonored? He does not even say what the written notice contained. There is no attempt made to show what that notice contained. The endorser was entitled to notice of the presentment and nonpayment. To make the notice good where in case of protest, it must set forth in terms sufficiently clear to inform the party what had been presented, giving the names of the drawer, endorsers, &c. 12 L. R. 467.
    To recapitulate : 1st. The endorser is only liable as transferrer, and did not guarantee the solvency of the parties to the check. 2d. If the endorser were liable in case of proper presentment and notice of dishonor, he is released in consequence of the check not having been presented on the last day of grace. 3d. There was no demand by the notary, nor lawful deputy. 4th. There was no protest recorded and signed by the notary and witnesses at the time of its date. 5th. There was no description of the instrument protested in the notice given. 6th. The certificate of the notary as to the manner of giving notice was not recorded and signed by the notary and witnesses on the day of its date. 7th. There was no notice given to the endorser of the presentment by the witness Duplantier, and failure to pay.
   The judgment of the court was pronounced by

Slidell, J.

Bayon is appellant from a judgment rendered against him as endorserof a check in these words: “New Orleans, October 5th, 1849. Cashier of Mechanics and Traders’ Bank will pay to the order of Jerome Bayon, Esq., five hundred and seventy-eight dollar’s sixty-six cents.

(Endorsed,) J. Baton. (Signed,) H. Rodriguez.”

The check was presented at the bank and protested on the day of its date, and Bayon was notified personally the next day. Although not identical with a bill of exchange, a check on a bank is in many respects governed by the same rules. When payable to order it is negotiable by endorsement; and Bayon is clearly liable as endorser, and not as a mere transferrer. It appears that the notarial record of notice was not regularly made. But this is immaterial, ■ it being proved by parol that Bayon was duly notified. It is well settled that an instrument of this sort is not entitled to days of grace. It is payable immediately on presentment.

Judgment affirmed,, with costs.


author: Rost, J.

text:
    Scott and Dunbar v. Featherston and Amis.
    Where A. soils a plantation to B., who assumes to pay certain debts due by A. and gives a mortgage upon the property purchased, the mortgage is binding upon B. without any acceptance on the part of the creditors of A., so long as another arrangement between A. and B. be not made.
    The surety who has paid a debt, for which the creditor subsequently to the creation of the obligation took a mortgage upon the property of the principal debtor, is entitled by subrogation to the mortgage rights of the creditor. The payment by the surety is the purchase of the rights of the creditor, such as they exist at the date of the payment.
    In a sale upon a first mortgage the purchaser holds the balance of the price subject to the subsequent mortgage.
    A sale under a concurrent mortgage does not extinguish the other concurrent mortgages. The sheriff has no right to receive the amount due on them, but only the pro rata share coming to the seizing creditor, leaving the balance in the hands of purchaser subject to the other concurrent mortgages.
    The knowledge which purchasers may have of the danger of eviction does not deprive them of claiming the return of the price after the eviction does take place.
    APPEAL from the District Court of Madison, Farrar, J.

      Stacy and Sparrow, for plaintiffs,
    contended: Scott and Dunbar were the sureties of Thompson L. King on two notes, one upon each, held by the Commercial Bank of Natchez. The bank sued and obtained judgment both against the principal, King, and the sureties, in 1842, which judgments were paid by the sureties.
    On the 15th June, 1839, Hunter and T• L. King sold a plantation and slaves in Madison to Augustus King. The stipulated consideration to be paid for the properly was the assumpsit by the purchaser of the debts of Hunter and King, to the amount of $44,800, and a balance over of $50,000 to be paid to the vendors ; the whole secured by a special mortgage retained upon the property; that seeming the payment of their debts having a priority of rank. Among the debts so secured, is in the act of sale declared one in favor of the Commercial Bank for $5500. The sureties claim the benefit of this mortgage on the property, and to be subrogated to the rights of the bank in relation to it.
    On the 13th March, 1841, this same property was sold under executions at the suits of Ballard, Franklin Sf Co. v. Hunter and King, and Lambeth and Thompson v. Hunter and King and Augustus King, to L. A. Collier, for $32,515 cash, subject to all the mortgages resting upon the property, as shown by the certificate of mortgages. Upon the price of this sale, Collier paid the amount of the two executions under which the property was sold, viz : $11,482 45, leaving a balance unpaid of $21,042 85 to be applied to the extinction of the subsequent mortgages. The above amount ($11,482 15) is all that has ever been paid upon Collier’s purchase upon the mortgages resting upon the property at the date of the sale. Notwithstanding the array of mortgages contained in the certificate of the parish judge; yet it is admitted in the written agreement that the following were the only first valid and binding mortgages on the property, viz: Ballard, Franklin Co., first mortgage, $9951 05; Lambeth and Thompson, June 5th, 1849, $4531 10; Planter’s Bank, June 5th, 1849, $9500; Commercial Bank, June 5th, 1849, $5500. Total $26,482 15; which did not absorb the price paid by Collier.

    By this agreement it is admitted, that the consideration of two notes in favor of Martin upon which judgment was obtained, entirely failed; that the notes and judgment were null and void; consequently the mortgage resulting from the recording of the judgment was void. All the other mortgages were subsequent to the date of the above. The proceeds of the sheriff’s sale should have been distributed thus: First, to paying the Ballard, Franklin 8f Co. mortgage, and next, the other three named, or dividing the balance of the money between them pro rata.

    Ou the 10th of February, 1842, Collier executed a special mortgage on this same property, in favor of Lambeth and Thompson for $10,250. This mortgage was transferred to E. C. Millcie, who took out an order of seizure and sale upon it, under which the property was sold and purchased by the defendants for $25,866 66. The balance then due on the mortgage was $5000, with 10 per cent interest from 15th February, 1842-
    Defendants, in their brief, have urged various objections whythe plaintiffs cannot avail themselves of the mortgage established on the property in favor of the Commercial Bank. These objections will be answered in the order they are made. 1st. It is not true that the sale under the oldest mortgage, that of Ballard, Fran7din &f Co., .extinguished all the subsequent mortgages, if the property brought more than sufficient to satisfy the mortgage under which it was sold. The purchaser would hold in his hands the balance of the price, to be paid over to the subsequent mortgagees according to their rank and privilege. C. P. 706, 708, 709. 3 L. R. 212. C. P. 718. Pepper v. Dunlap, 16 L. R. 170. The case referred to by the defendants in their brief, 9 L. R. 14, was that of a probate sale, and correctly decided.
    Neither is it true, the sale under-fhe mortgage held by Lambeth and Thompson — that created by Augustus King^-extinguished the other mortgages created by him in the same act and at the same date.-. No proceedings had been instituted upon these other mortgages ; and of course the mortgagees could not enforce the payment of the amounts due them. If the whole property had brought sufficient to satisfy not only the oldest mortgage, but also the whole amount secured by the mortgages created by Augustus King in favor of the creditors of Hunter and King, then the sheriff should have received from the purchaser, and paid over to Lambeth and Thompson the full amount of their debt. If the property did not sell for enough to satisfy all these mortgages of the same rank and grade, then the balance over .the amount of the first mortgage should have been divided pro rata among those of the second rank, and the sheriff should only have collected from the purchaser and paid over to Lambeth and Thompson this share; and the portion coming to the other mortgage creditors would remain in the hands of the purchaser subject to their call. 16 L. R. 170, and other authorities.
    Now, the only mortgage older than those created the 5th of June, 1839, by Augustus King, is that stated in the certificate of mortgages under Nos. 1 and 2, they being the same one. By this agreement the judicial mortgage in favor of Martin is admitted to be y,oid. All the other mortgages mentioned in the certificate are subsequent to the 5th June, 1839. Of the debts secured by the mortgage of Augustus King, that in favor of Martin did not exist; and as to that the mortgage was void and inured to the benefit of the other creditors of jjunier an(j King. That in favor of Briggs, Lacoste 8f Co., transferred to Ballard, Franklin Sf Co., and that to David Holstein, transferred to Lambeth and Thompson, were both paid by the sale under execution; still leaving an amount of the price unpaid in the hands of Collier of over $21,000, to be applied to the satisfaction of the mortgages held by the Commercial and Planters’ Bank— mortgages of the same rank as that held by Lambeth and Thompson. No part of this amount has been ever paid, and the object of this suit is that the plaintiffs recover their portion of it. Had the purchaser at sheriff’s sale been willing to have paid the whole amount of his bid into the hands of the sheriff, the latter would have had no authority to receive it. His receipt of the money would not have been binding upon the other mortgage creditors, nor have authorised the recorder to cancel their mortgages; and if he had done so upon this evidence the erasure would have been null. The sheriff can only legally receive money and give valid acquittances for it when the payment of it is required by the process he has in his hands. This alone gives him his authority. But in this case it is not pretended that a cent has ever been paid to any person, except the amount of the two executions under which the property was sold; so that, in fact, there have never been any proceeds to distribuí e. 6 L. R. 454. 16 L. R. 170.
    2. The first, part of defendants’ second objection is certainly original, unique and amusing, viz: that defendants purchased under a mortgage executed on the property by Collier; that their purchase was for the price of $24,866 66; that they paid on the price $6000, (the amount of the mortgage executed on the property by Collier,) “and retained in their hands the balance of the purchase money, to be applied to the amount due by Collier on his purchase, which he had retained to be distributed between the next privileged creditors.” We quote correctly. The payment of $6000, a debt contracted by Collier, and for which he executed a mortgage on the property to Lambeth and Thompson is attempted to be pieaded as a payment upon what he owed upon his purchase of the property upon the mortgages then existing on it. This is too absurd to require further notice.
    The other portion of this objection requires to be examined in detail. It is substantially this: that since the purchase by the defendants they have been evicted of some 450 acres of the land and some dozen of the slaves, by Susan Jones. The fact is admitted; but the legal consequences sought to be deduced from it by defendants are denied. We will first examine the matter as to Collier, who purchased under execution against Hunter and King, and refer to the testimony of Mr. Bemiss, who says that the suit of Charles Jones v. Hunter and King, in which Susan Jones recovered the property, was generally known in the parish and particularly by the property holders in the neighborhood of the property in controversy. That Collier always alluded to this suit as lessening the value of the property, which rendered the title to this portion insecure; and that the conversations were had with Collier before the latter purchased the property. We next refer to an agreement between Collier and T. L. ICing, made only fifteen days previous to the purchase by the former of the property under execution, aud' especially referred to in said purchase, in which it is solemnly declared by Collier and King that the three notes of 5000 dollars each, executed by said King to fflooclhouse, had “ wholly and entirely failed,” and that tho parties hqd a good defence against them; and the parties make special stipulations for a defence if a suit should be brought upon them. The record of Charles Jones et al. v. Hunter and King, now in the Supreme Court, is by consent to bo read as if copied. By reference to this record it will be perceived that the consideration of the three above notes, which the parties declare to Ijavo failed entirely, was the undivided half of the John Jones property sold by Woodhoust to King ; of the same property sold by Briscoe to Hunter and Woodhouse, and for which they had given the notes held by Martin; the cons'doration for which the parties to this suit admit to have failed. The suit of Charles Jones et al. v Hunter and King, at the date of this agreement, had been pending for five years to the knowledge of said parties, and they admitted ;n this agroemeut the justice of it. -But what was agreed upon by Collier ? Why, notwithstanding his full and perfect knowledge of all the preceding facts, that at the sheriff’s sale then shortly to take place, ho bound himself to purchase the whole property, some 2,000 acres of land and forty or fifty slaves, and including in it the John Jones property, for which said notes were given, at price sufficient to satisfy all the claims held by him, amounting to about $50,000, and $10,000 over. Under his own agreement, with a full and perfect knowledge of all the facts, and the insecurity of the title, Collier did purchase the property; which purchase extinguished the claims held by him and made him a debtor to the heirs of Mrs. King in the sum of $10,000. He expressly and knowingly took the title, such as it might be then, with all its hazards and subject to the suit then pending against it. The title was a litigious right: merely an uncertain hope. The right alone, such as it might be, passed to Collier by the sheriff’s sale. He was entitled neither to warranty nor a deduction of price upon being evicted from the whole or any portion of the property. C. C. 2623, 3426, 2481, 2535. 5 M. R. 77. 9 R. R. —. Fuller v. Harman, 3d Ann. 250.
    The defendants’ position is precisely the same as that of Collier. They admit, in their second point, that they acquired under the sheriff’s sale simply the rights of Collier. This is true. In addition, they were well acquainted with the existence of the suit of Charles Jones. They were residents of the same parish and lived in the immediate neighborhood of the properly in dispute. Besides, the testimony of Alonzo Snyder proves that Amis had positive knowledge of the suit before they purchased. The same rules of law apply to them as to Collier. The court is well aware of their manoeuvre shortly after their purchase, to sacrifice the property of John Jones to their own benefit. See the record of Charles Jones et al. v. Hunter and King, and the decision in the case, 2d Ann. 254. Their claim for a reduction of price should be rejected. — 3d point of defendant.
    Fourth allegation, that the sale from Hunter and King to Augustus King was fraudulent, and the mortgages stipulated on the property in favor of the creditors of Hunter and King void.
    There is no proof that at the date of the sale Hunter and King were insolvent. The sale might or might not have been fraudulent and simulated between the parties. We do not pretend to decide. The stipulations of mortgage contained in the act of sale, securing the debts owed by Hunter and King, were unquestionably honest and bona fide. Under this sale the creditors of Hunter and King acquired a mortgage on the property contained in the act of sale, no matter what might be its character. If there was fraud, they are no parties to it, and have a right to enforce the contract made in their favor and for their benefit. The only objection that could possibly exist against the validity of this mortgage, is that contained in the art. 1978 of the Civil Code, viz: that it was a preference accorded in favor of creditors. Now, this mortgage, executed by the joint consent of the vendors and purchaser in favor of the creditors of the vendors, had been passed and was of record more than five years previous to the institution of this suit. The creditor’s of Hunter and King were the only persons having the capacity to attack either the sale or the mortgages stipulated in it. No suit has ever been brought to annul the sale or set aside the mortgages. This could only be done within one year from the date of the passage of the act. C. C. article 1982. 6 R. R. 150. 4 R. R. 408. 2 R. R. 280. Cammaek v. Gillespie, 3d Ann. 248. Again, no one but the creditors of Hunter and King, injured by the preference given to the creditors secured by mortgage, had a right to bring suit and avoid it. They never have brought such suit or complained of the preference given. The defendants are merely stake-holders in possession of the property, upon which exists a mortgage to secure the payment of the amount retained by Collier upon the price of his purchase. That sum is to be paid by them, or the property abandoned to be sold to pay it. The creditors might oppose the payment of the money to the plaintiffs, but it does not lie in their months to contest plaintiffs’ claims.
    As to the objection contained in defendants' fourth and seventh points, that the mortgage was not accepted by the Commercial Bank. No acceptance was necessai-y. Acts containing stipulations purely for the benefit of a third party are always presumed to be accepted. C. C. art. 1884, 1812- 2 N. S. 672. 3 N. S. 609. 2 L- R. 552. 5 R. R. 243. 5 C. R. U. S. 356. But, in point of fact the Commercial Bank did, as soon ns they were aware of its existence, accept this mortgage; notified Collier of the fact in writing and that they intended to enforce it on the property in his possession. The bank had two remedies: one against the mortgaged property, and the other against the sureties of Hunter and King. They chose to pursue the sureties,which they did, and made the debt out of them.
    But the defendant’s point fifth: That the notes of Hnnler and King were prescribed before the institution of this suit, more than five years having elapsed since the assumpsit and mortgage of Augustus King. The answer to this is, that those notes were, in 1842, merged in the judgments against King and the plaintiffs. These judgments then became the evidence of the debts assumed by Augustus King, and were paid by the plaintiffs. Prescription against the sureties paying, only commenced to run from the date of their payment, and then the prescription of ten years only would apply. It run neither against the notes nor the judgments, but against plaintiffs’ right to be paid under the assumpsit of King, and to avail themselves of the mortgage executed by him.
    Sixth. It is shown by E. B. Fuller, teller of the Commercial Bank of Natchez, that the notes upon which the judgment was obtained were held by that bank at the date of the assumpsit and mortgage; and that Hunter and King’s indebtedness at that date to the Commercial Bank of Natchez then slightly exceeded in principal and interest the amount of the assumpsit, $5,500. The identity of the bank in favor of which the assumpsit was intended to be made and the mortgage executed, is sufficiently shown, as it is not proven that Hunter and King were indebted to any other “Commercial Bank.” In certum est, quod certum reddi potest.
    The precise amount secured by mortgage and assumed is fixed at $5,500, and declared in the act.
    It is admitted that the legal interest of the State of Mississippi was eight per cent up to February, 1842. This debt, then, to the amount assumed, $5,500, at the date of the assumpsit, was bearing eight per cent interest — it being due —was assumed with the incidents attached to it, and the interest as well as the principal entered into it. In other words, the debt was assumed in the state and condition it then was, and the assuming interest was protected by Lhe mortgage.
    Seventh. Defendants deny, that although the Commercial Bank might have been entitled to the benefit of the mortgage executed by King, yet that the sureties of Hunter and King did not, by paying their debts, become subrogated to the rights of mortgage held by the bank.
    The Code, art. 2157, says that subrogation takes place of right, for the benefit of him who, being bound with others or for others for the payment of the debt, had an interest in discharging it. This subrogation is to the rights of the creditor who has been paid by the parly thus bound. C. C. p. 2155, arts. 3021, 3022, provide that the security has the same right of action and the same privilege of subrogation which the law grants to joint co-debtors. What were the rights of the Commercial Bank, at the date of their judgments and the payment of their debts by the sureties, against the principals Hunter and King, and Scott and Dunbar, their sureties. 1st. To enforce payment against both principals and sureties personally. 2d. To avail themselves of the benefit of, and to enforce, all the mortgages executed, or other securities acquired in their favor by either, to secure the payment of the debt. The legal subrogation often when it takes place is as extensive as the conventional can be. They both include all the rights, actions, privileges and mortgages held by the creditor against the debtor. C. C. 2156. Here a legal subrogation covers everything to which the creditor could subrogate the sureties against the debtor, upon payment by the former. Pothier on Obligations, No 522. The payment made by the surety does not extinguish the debt, but is considered as a sale, to the party paying it, of all the rights and actions of the creditor. The cases of Old v. Chambliss, 3d Ann. 206; Tarder v. Allen, do. 66, and Trente. Calderwood, 2d Ann. 942, do not militate against the above principles, but support them. The execution of a twelve months’ bond is a new contract; the judgment is merged in it; there is no privity between the original creditor and the surely on the bond; but, should the debtor, who had executed the bond, have subsequently given a mortgage to the creditor to secure its payment, and the bond been paid, by the surety, there can be no doubt that he would be legally subrogated to all the rights of mortgage of the creditor. The subrogation would then take place in favor of the surety “originally bound by the contract,” and he could avail himself of the mortgage.
    The complaint that the interest has been compounded is unfounded. Art.-3021 provides, that the security who has paid the debt has his remedy for the principal, interests and costs which he has been sentenced to pay; and by art. 1936 the surety who is obliged to pay money for his principal, shall receive interest on the whole sum he has paid, whether for principal or interest, from the time of payment.
    As to the complaint that the mortgage in favor of plaintiffs is recognised on the slnves Annie.a, Ann and Clara or Clarissa, it will be seen that none of these slaves were recovered by Susanna Jones. And that the name of only one,
      Annica, occurs in the admission of the sale from Susan Jones to Junius Amis, and that the slave America, who was recovered, is not included in the sale to Amis. This is merely a clerical error of Anna, for America, who was recovered but not included in the act of sale; and as Anna was not recovered as a part of the Jones property, the mortgage rests on her.

      J. Thomas, for defendants,
    contended: 1st. The plaintiffs have no mortgage. The assumpsit of Roe is wanting in that certainty which in a mortgage can affect third persons. “Also to the Commercial Bank the sum of $5500.” In the same act where notes and bills had been given they are mentioned as such. C. C. 3277. 9 R. R. 485.
    There was then due, the 5th of June, 1839, of the principal of the two notes said to represent the $5500 assumed, $5830 12, viz: one of $3983 29, and one of $3421 69, subject to a credit of $1574 86. Of this, King paid on the 8th of June, 1839, $250, and the petition apportions the amount to which the two notes are supposed to be entitled, thus: to Dunbar, $3125; to Scott, $2375, making $5500,
    2d. The bank never accepted the provision, if any made for it, now claimed by the plaintiffs as subrogees under it; nor did the plaintiffs in any manner recognise it as a security for their debts until after the purchase by Collier and defendants, and until five years after its date, and after they had paid. Zacharie v. Obiarm et al., 6 L. R. 402.
    3d. The security now claimed did not grow out of the contract of the plaintiffs. The bank did not accept it, consequently could not delegate it, or the plaintiffs be subrogated by payment. 2d Ann. 942. 3d Ann. 205. L. C. 2157, sec. 3, 3022, 3030.
    4th. The conveyance by Hunter and King to Roe was fraudulent, and any one affected by the mortgage reserved may complain.
    5th. The mortgage claimed, if one ever existed, and the plaintiffs were subrogated to the rights of the bank under it, was cut off by the sale to Collier in March, 1841, who bought under one older, and one concurrent with it.
    This sale left a surplus to be applied to other liens; and to that surplus the plaintiffs, if they have any right, must look. The sale was for cash. Consequently the surplus was legally in the hands of the sheriff; and if he permitted Collier to retain it, his was the fault, and upon him rests the loss.
    6th. Collier mortgaged to Lambeth and Thompson; Milkie put it in judgment ; and under it the defendants bought.
    This purchase left a surplus in their hands, which is more than covered by the loss of the Jones property, and that sold under the Muir and Moore judgment.
    7th. The property having been sold under one mortgage older, and one concurrent with that claimed by the plaintiffs, and those mortgages paid by the purchaser, defendants’ vendor, and there existing other concurrent and prior liens to that claimed by the plaintiffs, the judgment should fif the plaintiffs have any rights) have ordered the sale of the whole property, the proceeds to be brought into court, and distributed in concurso. This form of judgment has a precedent in the case of Chien v. Roe, 2d Ann. 492,
    In that concurso the defendants would be entitled as representing Collier their vendor to the rank, which the mortgages paid by him held in reference to the other liens. He and they would be, as it were, subrogees to themselves, thus abandoning the property and preserving their liens. Millauclon v. Allard, 2 L. R. 551.
    The judgment as it stands, whatever the rights of the plaintiffs, is an outrage upon justice and law. The property is, as shown by the two sales, and the portion of it lost, wholly insufficient to pay the plaintiff’s demand, and leave anything to reimburse the payments made on it at judicial sale, without taking into account other concurrent and prior liens; thus giving an undue advantage to the tardy. And a decree may be so rendered under the pleadings and prayer of the defendants and the showing made in the record.
    8th. The judgment includes three of the slaves, Annica, Anne, and Clara or Clarissa, excluded by the statement of facts, being part of the Jones negroes.
    9th. No interest should have been allowed, except from judicial demand, and that of 5 instead of 8 per cent; no time of payment being fixed by the assumpsit, and no interest agreed to be paid.
    10th. The interest was added to the principal, and interest allowed upon the aggregate. C. C. 3021.
    11th. If it is assumed that the notes constituted the basis of interest, and the position be true as to others than the makers, the demand is prescribed. Neither the mortgager nor the defendants were parties to the suits upon them; nor were they bound in solido with those against whom suit was brought. These suits, tjlen) ¿üd not interrupt or suspend prescription as to others.
   The judgment of the court was pronounced by

Rost, J.

This is an action of mortgage. There was judgment in favor of the plaintiffs, and the defendants appealed.

The material facts of the case are as follows: Scott endorsed a note for Thompson L. King. Dunbar contracted an obligation in solido with Thompson L. King and others. These two notes were discounted by the Commercial Bank of Natchez for the benefit of King. They were not paid at maturity, but shortly after they became due King sold a plantation and slaves, which he owned in common with John E. Hunter, to Augustus King, who, as the consideration of the sale, assumed to pay debts of the vendors amounting to $44,500, and gave them his notes on long terms of credit for the further sum of $50,000. The vendors retained a mortgage in their own name to secure the payment of the whole consideration, with the express agreement that the debts assumed should be secured thereby by priority and preference over the remainder of the price, in the same manner as if they were secured by a mortgage of prior date. Among the debts thus assumed was a sum of $5500 which the purchaser bound himself to pay to the Commercial Bank on the notes of Thompson L. King.

Augustus King having paid none of the debts assumed by him, the property was seized under one mortgage older, and one concurrent with that claimed by the plaintiffs, and it was adjudged to Lewis A. Collier for $32,515. He paid the two seizing creditors $11,482 45, and retained in his hands the balance of the price to be applied to the unpaid mortgages.

The property was subsequently seized and sold at the suit of the creditors of Collier, when it came to the possession of the defendants. After the sale to Collier, the Commercial Bank of Natchez notified him that they intended to avail themselves of the stipulation made by Augustus King in their favor, and to enforce the mortgage given by him.

The bank in the meantime brought suit on the two notes against the plaintiffs and obtained against them judgments which they have since paid. They allege that by this payment they have become subrogated to all the rights of action of the bank, and more particulai-ly to the mortgage given by Augustus King. They pray that the defendants be adjndged to pay them the balance due on the notes of Thompson L. King, with interest at the rate of 8 per cent per annum according to the laws of the State of Mississippi, or that in default thereof, the property mortgaged be seized and sold to satisfy their claim.

The defence is, that the bank has no mortgage, and that it never accepted the provision, if any, made for it. That the security now claimed did not grow out of the contract of the plaintiffs, and they could not be subrogated to it by payment. That the conveyance to Augustus King was fraudulent. That the mortgage claimed, if one ever existed, was cut off by the sale to Collier. That the judgment included three of the slaves which were excluded by the statement of facts. That no interest should have been allowed, except legal interest from the judicial demand. That in the judgment, interest has been added to the principal, and then allowed upon the aggregate, in violation of art. 3021 C. C. That if it "is assumed that the notes constitute the basis of interest, and the position be true as to others than the makers, the demand is prescribed. That since the purchase of Collier and their own, they have been evicted of a large portion of the property purchased by them, and that they are entitled to a reduction on the price agreed to be paid by Collier, they being subrogated to his right.

A mortgage is clearly retained by the vendors to secure the payment of $5500 to the Commercial Bank. The evidence leaves no doubt on our minds that the bank meant was the Commercial Bank of Natchez. It accepted the provision made in its behalf after the sale to Collier, and if it had not, the provision was binding upon Augustus King and the property purchased by him, so long as another arrangement was not made between him and his vendors.

The plaintiffs were bound with Thompson L. King and for him for the payment of their notes, and had an interest in discharging them. Under art. 2157, C. C., subrogation took place of fight in their favor at the time of the payment. This subrogation covered every thing to which the creditor could subrogate the sureties against the debtor, upon payment by them. The payment made by the surety does not extinguish the debt, but is considered as a sale to the party paying it of all the rights and actions of the creditor. Pothier, on Obligations, No. 559.

Whether the sale to Augustus King was or not fraudulent between the parties, is a question into which we cannot enquire. The Commercial Bank was no party to the fraud and the mortgage stipulated in their favor cannot be affected by it. Other creditors of Thompson L. King might have objected to the preference thus given to the bank ; but the defendants have no right to do so.

We are of opinion that the mortgage was not cut off by the sale to Collier. That sale was made under one mortgage older, and one concurrent with that of the plaintiffs. The property having brought an amount more than sufficient to satisfy the older mortgage, the purchaser would hold in his hands the balance of the price subject to the subsequent mortgages, according to their rank and privilege. C. P. art. 706, 708, 709, 718. Casanova v. Aregno et al., 3 L. R. 212. Pepper v. Dunlap, 16 L. R. 170.

The sale under the concurrent mortgage did not extinguish the other mortgages created in the same act and at the same date. No proceedings had been instituted upon these other mortgages, and the sheriff had no right to receive the amount due on them under the writ he held. If the property did not sell for enough to satisfy all the mortgages of the same rank, the balance over the amount of the older mortgage should have been divided pro rata, among the mortgagees, and the sheriff should only have collected the pro rata share of the seizing creditor ; and the portion coming to the other mortgage creditors would in that case remain in the hands of the purchaser, subject to their call, and secured by their mortgages. Pepper v. Dunlap, already cited.

The slaves Anne, Clara or Clarissa and Annica form no part of those recovered from the defendants by Suzanna Jones. In her sale of the property recovered to them, the name of Annica is found; and as she had recovered one named America, who is not mentioned therein, the name of Annica was evidently inserted through error for America.

That portion of the judgment which allows interest at the rate of 8 per cent per annum is erroneous. As a general rule, a third possessor in an action of mortgage is not bound for interest not preserved by the inscription. But the defendants are not, properly speaking, third possessors. Collier, in whose place they stand, was a stakeholder to the amount remaining in his hands, after satisfying the executions under which he purchased. The amount assumed as cash by Augustus King was part of the price of the plantation and slaves, and bore legal interest from date by the operation of law. For that interest as well as for the principal a privilege existed on the property at the time of the judicial sale, and it continued to run against Collier afterwards upon that portion of the price which remained in his hands. To that interest the plaintiffs are entitled.

The plea of prescription cannot be sustained. Augustus King was primarily dable to his vendor Thompson L. King; and it is to him that he gave the mortgage in controversy. Between them the debt assumed is clearly not prescribed. The delegation by Thompson L. King did not create a novation of the debt; and so long as it is binding between the original parties to it, the recipient agreed upon by them is entitled to the benefit of it.

It is proved, that since the judicial sale to Collier and to the defendants they have been evicted from a large portion of the property. But it is urged on behalf of the plaintiff's that the suit in which the eviction took place had been pending five years at the time Collier purchased, and that he as well the defendants had a full and perfect knowledge of all the dangers of eviction at the time of their respective purchases, and are entitled neither to warranty nor to a reduction of the price. It is also to be observed, that the claim of the bank against Thompson L. King had been preserved by a judgment.

We cannot assent to these propositions. The sheriff’s sale to Collier is in the usual form, and carries with it, of course, the usual warranties of such instruments. The knowledge which purchasers have of the dangers of eviction does not deprive them of the right of the claiming the return of the price after the eviction has taken place. That right exists in all cases, unless the party evicted, knowing the danger of eviction, took the property without warranty, and at his peril and risk. C. C. 2481. C. P. 711.

The defendants, as subrogated to the rights of Collier, are entitled to a reduction of the price agreed to be paid by him. But there is nothing in the record by which we can ascertain the amount to be deducted, or whether the sum remaining will be sufficient to satisfy all the mortgages of equal rank with that of the plaintiffs.

To obviate the necessity of remanding the cause, the counsel for the defendants have suggested that the court should order the sale of the property remaining in the possession of the defendants, and the proceeds to be brought into court and distributed among the mortgage creditors; giving to the defendants, as representing Collier, their vendor, the rank which the mortgages paid by him held in reference to the others.

If the defendants had claimed, in their answer, the rescission of the entire sale under art. 2487 C. C., on account of the partial eviction suffered by them, and had made proper parties', such would undoubtedly have been the decree of this court. But the decree asked is unauthorised by their pleadings. They have purchased from Suzanna Jones the property recovered from them, and insist upon the right to retain the whole and to deduct from the price which Collier agreed to pay the consideration of this purchase. Under those circumstances we can only remand the cause for the purpose of ascertaining the relative value of the property not recovered by Suzanna Jones in relation to the whole property purchased by Collier, and the amount of mortgages of equal' rank now existing on the property. We see no objection to the division of the' amount claimed, as made by the plaintiffs.

It is thei’efore ordered, that the judgment in this case be reversed. It is further ordered, that the claim of the plaintiff Dunbar be recognised to the amount of $3125 with legal interest from the 5th June, 1839, till paid. It is further ordered, that the claim of the plaintiff Scott to the sum of $2375 with legal interest from 5th June-, 1839, till paid, be also recognised and allowed. It is further ordered, that the'case be remanded for further proceedings, with the following directions to the district judge: 1st. To ascertain the reduction to wliich the defendants are entitled on the price agreed to be paid by Collier in eonsequenee of the partial eviction suffered by them in the suit of Charles Jones et al. v. Hunter and King, Suzanna Jones intervenor. 2d. To ascertain further, the amount of the mortgages of equal rank with that of the plaintiffs now existing on the property in dispute; and to cause the holders of those mortgages to be notified of these proceedings. 3d. To distribute among those mortgage creditors the sum found to be due by the defendants, and to cause the property mortgaged to be seized and sold to satisfy it.

It is further ordered, .that the plaintiffs and appellees pay the costs of this appeal.


text:
    J. M. Barthet v. J. P. Estebene.
    When a sufficient number of the regular panel of the jury are not present, the court is authorised to direct the sheriff to summon talesmen and proceed with the trial of the case, notwithstanding attachments are out for the absent jurors.
    Parol evidence is inadmissible to establish a modification of a written agreement, or to establish a subsequent parol agreement inconsistent with the written one.
    APPEAL from the District Court of Jefferson, Clarke, J.

      Marks and Grandmont, for plaintiff.

      Michel and Burns, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The defendant sold to the plaintiff a stock of milk cows, a horse, cart, and utensils for a dairy, for $1300, payable $200 cash, and the balance in a note payable the 1st of December, 1848, with the right to extend the payment twelve months by paying eight per cent interest. In December, 1848, the plaintiff paid $200 on account, and gave a note at twelve months for the balance. In January, 1849, the defendant took forcible possession of the property remaining in the possession of the plaintiff.

This suit was instituted to recover back the same, with damages. There was a verdict fojr the plaintiff', with five hundred dollars damages. After an unsuccessful effort to obtain a new trial judgment was rendered against the defendant., and he has appealed.

The defendant’s counsel has called our attention particularly to two bills of exception taken by them in the progress of the suit. The cause being called for trial, and there not being enough of jurors in court to form a jury, the court issued attachments for the absent jurors, but before all the attachments had been returned, ordered the sheriff to summon talesmen to complete the jury. And the sheriff, in the execution of the order, went into the street and brought in persons of his own selection to complete the jury. The counsel of the defendant objected to this, on the ground that the court could not order talesmen to be summoned on the jury, until the attachments for the jurymen on the regular panel had been returned ; and that the sheriff, in the execution of the order, could not go out of the court room to select jurors.

The 513th article of the Code of Practice authorised the court “ if, on account of absence, the jury should not be complete, to order the sheriff to summon a certain number, of persons present having the legal qualifications in order to complete it.” The very case had occurred of an insufficient number of jurors to form a complete jury, in consequence of the absence of some of the panel. The judge did his duty by issuing attachments to bring the absent jurors into court, to excuse or subject themselves to punishment for non-attendance, and to serve in that or other cases ; but it was equally his duty to expedite the case on trial, by ordering persons present to be summoned to complete the jury, on account of the absence of jurors belonging .t.o the regular panel. The absence of the jurymen belonging to the panel, and not the impossibility of finding them, was the cause which authorised the judge to order persons present to be summoned to complete the jury, ft is urged, that the sheriff should have summoned tliQs.e who were present in the court room, and had np right to summon persons in the street. The jury terms of our courts call together many persons in the vicinity of the court houses, who, by a liberal construction of the Code of Practice, may be considered presen.t at court, and liable to be summoned under the article of the Code of Practice. Perhaps the judge could not order the sheriff to go out of the court house to summon talesmen, and, perhaps the persons summoned might refuse to obey the summons ; but if he is willing to go, and they to come, it is not for the parties to the suit to complain.

The defendant offered to prove, that since the date of the contract, the witness henrd a conversation between the parties, in which the plaintiff stated, that when the note given by him fell due, if he could not pay it, the defendant would have the right to take back the properly upon refunding the amount paid by him, and paying him wages at the rate of twenty dollars a month.

The testimony would have directly contradicted the written agreement, and was therefore properly rejected. The defendant’s counsel contends, however, that it was evidence of a subsequent agreement, which might be proved by parol, and which was set up in his answer as a defence. We find, on examining the answer, that it was set up as a modification of the original agreement, alleged to have been made at the same time, and not as a subsequent and distinct contract. Indeed, as proof of a subsequent contract the testimony was inconsistent with the renewal of the note for twelve months from December, 1848. Whether, therefore, ,th.e testimony was offered in support of an allegation that the written agreement was modified by parol at the time of making it, or to establish a parol agreement inconsistent with the renewal of a note in execution of the written agreement, it was properly rejected. Code, article £257,

The defendant has relied in this court on the legal questions raised by his counsel. We have, however, examined the evidence with care; and, considering the violent manner in which the defendant dispossessed th.e plaintiff of his property, taking him by the collar, and thrusting him into the- street, and considering that he entirely broke up his business, which is proved to have been profitable, we do not think the damages given by the jury excessive.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs in both courts.