9 La. 265 | La. | 1836
delivered the opinion of the court.
The only question presented for our solution in this case , is, whether the vendor of immoveable property has a privilege, on the thing sold, for the interest due oh the price, arising ex mora, as well as for the price itself.
It is conceded, that the price of immoveables susceptible of producing fruits, bears interest from the time it is due, without any formal demand or putting in delay. It is legal . , . ,,r ° J , . , interest, and may be regarded as an accessory to the capital, and forms a part of the price itself. The privilege for the price extends, in our opinion, to the accessory.. The question here presented was formerly much litigated in France under its modern legislation, but is now considered as settled by the highest judicial authority. The Court- of Cassation, in . ° ° ^ • 3 its definitive decree, assumes, as the basis of its reasoning, that the privilege of vendors is a right, arising out of the very nature of the contract of sale, inasmuch as the transmission of the property is not perfect until' the price is paid, and that the price is composed of the capital and the interest which the law allows in the absence of any convention, such interest representing the fruits of the immoveables sold. 3 Martin's Reports, 91. 18 Sirey, 2, 233. 16 Duranton, No. 342.
The counsel for the appellee has called our attention to the case of D'Autrive vs. Degruy, in which, he supposes this court has settled a contrary doctrine. But the principle decided in that case was, that interest promised to be paid on a privileged debt was not privileged. Degruy, in a concordat with his creditors, had agreed to pay interest on certain privileged claims, and the court held that the promise did not create a privilege for the amount of interest. The interest in that case was not a legal accessory of the original debt. 2 Martin N. S. 117.
It is further contended, that interest ceases on the cession of property by the insolvent. This question was presented in the case of Hagan et al. vs. Sompeyrac et al., and this court held that even conventional interest was due on claims against an estate eyen where it is insufficient to meet all claims. 3 Louisiana Reports, 154.
We are, therefore, of opinion that the court erred in classing the interest due on the price of the property sold by the appellant to the insolvent as a simple debt without privilege; but that as to the costs of protest, the privilege does not attach, because the interest runs, in a case like this, without protest.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed, so far as relates to the privileged claim of C. Paulding; and that his claim for three thousand dollars, together with interest at five per cent, from the time the same became due, be put down on the tableau as entitled to the vendor’s privilege; and that the appellee pay the costs of this appeal.
