delivered the opinion of the court.
The parties to this suit appeared before us at last March term, in an appeal from an order of seizure and sale, sued out by plaintiff. The amount due and assumed to be paid by defendant appearing doubtful and unadjusted in the sale of the property to him, the executory proceedings were set aside, and the plaintiff left to proceed by ordinary suit. 15 La. Rep. 125.
The petitioner in her own right, and as administratrix of the succession of M. Dupuy, since deceased, seeks to recover, as a mortgage debt on the land [64] and slaves sold by the deceased to T. Lessassier, and now owned by the defendant, the sum of $13,200, the amount of the price with ten per cent, interest per annum on $11,000, from the 1st of April, 1830. She claims this
The case was tried before a jury, who gave plaintiff a verdict for $11,640, with interest at ten per cent, per annum for two years and a half back, until paid, with mortgage and privilege on the property. A motion for a new trial was made and refused by the court, who, upon a remittitur being entered by the plaintiff’s counsel, rendered judgment only for $8,659, with interest at ten per cent, per annum from the 20th of June, 1835, till paid; from this judgment the defendant appealed.
The record shows that on the 13th of August, 1828, Marcel Dupuy sold to T. Lessassier a tract of land and negroes for $13,200, of which $2,200 were payable in March, 1829. As to the balance, the purchaser had the privilege to postpone the payment of it from year to year, until the end of March, 1838, on paying ten per cent, per annum interest thereon, with the understanding that all moneys paid on account in that interval should be received and imputed in payment of the principal. On the 8th of March, 1836, T. Lessassier sold the same land and slaves, together with other adjoining lands and other slaves, to the defendant for the sum of $6Q,000, payable in five instalments of $12,000 each ; the first payable as soon as the renunciation [65] of the vendor’s wife could be obtained, and the four others at one, two, three, and four years, from the day of sale. But as there were, according to the certificate of the parish judge, certain mortgages bearing on the land and slaves in favor of the several vendors to Lessassier, and among others the one in favor of M. Dupuy, it was agreed that Dashiell should give notes on the second and third instalments, only for the balance remaining on them, after deducting the mortgage claims due by Lessassier on the property : he (Dashiell) retaining in his hands the amounts so deducted. Thus it is stated that on the payment due the 8th of March, 1837, of $12,000, there shall be retained in his hands by the vendee, who assumes the payment thereof $1,800 mortgage due to Mrs. E. Le Blanc; $5,000 due to Woodward, and $1,100 interest due to M. Dupuy, on the 13th August, 1837; leaving only $4,100; for which the purchaser furnished his note. In like manner, from the sum of $12,000, due the 8th of March, 1838, there was retained $640, interest due 13th August, 1838, and the capital due to M. Dupuy, to wit, $11,000, leaving only a balance of $360, for which the purchaser gave his note. Eor the fourth and fifth instalments, notes in full were given, but as there were some doubts whether the sums due on the mortgages were accurately stated, it was agreed that the notes should remain deposited in the notary’s hands, subject to an ulterior adjustment.
Dupuy’s mortgage was first recorded on the 13th of October, 1828, and it was reinscribed only on the 9th of March, 1839. It is clear that this renewal of the registry after the expiration of ten years, could not avail the plaintiff
We come next to the plea of payment set up by the defendant. To sustain it he bas introduced several receipts of Dupuy from Lessassier; the payments they establish are admitted except two, to wit, one of $1000 and another of $300. Two accounts were filed by the plaintiff as rebutting evidence in relation to these disputed payments. In the first of these accounts exhibiting a debt from Dupuy to Lessassier of $2827, and receipted by the latter on the 21st of April, 1832, is mentioned a sum of $1000 á wus combé le 13 Mars, 1832, being the very date of the receipt produced for the $1000, and a receipt for $4960 is executed on the very day that this account was receipted for by Lessassier, to wit, the 21st of April, 1832, showing clearly we
It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and proceeding to give such judgment as in our opinion ought to have been rendered below, it is ordered that there be judgment in favor of the plaintiff in her said capacity, for the sum of six thousand one hundred and eighty-six dollars and ninety-four cents, with interest at the rate of ten per cent, per annum from the 20th of June, 1835, until paid, with mortgage and privilege on the land and slaves sold by Marcel Dupuy to Timoleon Lessassier; and it is further ordered that the said property be seized and sold according to law, to satisfy the debt and mortgage aforesaid, with costs in the court below; the appellee to pay the costs of this appeal.