105 So. 21 | La. | 1925
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *943 On January 19, 1919, defendant and three associates sold to the Globe Oil Company a certain oil lease for $300,000; of which $60,000 was paid cash, and the balance secured by mortgage on said lease. On the same day the Peerless Oil Company sold to said Globe Oil Company another oil lease for $450,000; of which $90,000 was paid cash, and the balance secured by mortgage on said lease.
It appears also that defendant and his associates were the principal stockholders of the Peerless Oil Company; that the sale of both leases was negotiated as a single transaction for $750,000, of which $150,000 was to be paid cash, and the balance on terms, the stockholders of the Peerless Company approving the division by which the company received 60 per cent., and defendant and his associates 40 per cent. thereof. But mention is made of all this simply to show that defendant and his associates had an interest in both mortgages when defendant purchased *944 at the foreclosure sale hereinafter mentioned.
Meanwhile, on February 15, 1919, the Globe Oil Company had granted a second mortgage on these (and other) leases to secure certain bonds aggregating $2,000,000; in which mortgage (and deed of trust) plaintiffs Frank M. Forrey and the Fort Dearborn Trust Savings Bank of Chicago have been constituted trustees for the bondholders.
Both leases were advertised for sale (and were sold) on the same day, to wit, July 3, 1920. On which day, with interest, attorneys' fees and costs, the claim of defendant and associates amounted to $90,313.03, and that of the Peerless Oil Company to $136,690.30. And on that day the claim of the Continental Supply Company amounted, with legal interest from February 1, 1920, to $21,824.71; for which amount said company claimed a vendor's lien and privilege upon such machinery, supplies, and tools furnished by it *945 to the Globe Oil Company, as might be found upon the seized premises and capable of identification.
Whereupon counsel representing plaintiffs in the foreclosure proceedings (who also represented this defendant in the purchase he made at the foreclosure sale) investigated the claim of the Continental Supply Company, and having been satisfied that the claim was due, and that the property sold by the Supply Company to the Globe Company could be identified, entered into a written engagement with the attorney for the Supply Company, whereby it was agreed:
"* * * That, in order to save costs and expenses the aforesaid property sold by the Continental Supply Company (to the Globe Oil Company) be this day sold under the foreclosure proceedings without being separately appraised and separately sold; but that $21,339.71 of the sales price of said property in the foreclosure proceedings be set aside as the *946 proportionate part paid for the property shown in the list hereto annexed and made part hereof, and on which the Continental Supply Company has its vendor's lien and privilege; and it is agreed that its vendor's lien may be recognized and enforced against the said sum of $21,339.71, plus interest from February 1, 1920, the same as if the said property had been separately appraised and sold for the said sum of $21,339.71, plus interest from February 1, 1920 (i.e., $21,824.71). The admissions herein are made upon the assumption that no third party has any adverse interest."
The full amount of the Supply Company's claim, $21,824.71, was thereupon paid by the sheriff to its attorney ($8,731.90 plus $13,092.81), and the balance of said purchase price, less the costs, was paid to the attorney for the plaintiffs in the foreclosure, being the amount of their claim with interest and attorneys' fees according to the bid originally intended by defendant (to wit, $89,380 on the Strange mortgage, and $134,170 on the Peerless mortgage). *947
Their claim is that defendant's bids must be held to be, in contemplation of law, simply a flat bid of $99,044.93 for theStrange lease, and a flat bid of $149,783.11 for the Peerless lease; that the Continental Supply Company had no vendor's lien or privilege for the balance due it on open account; and if it ever had one, then same was lost by failing to demand a separate appraisement and separate sale of the property on which it claimed such privilege, and allowing same to be sold confusedly with other property; that accordingly, the excess of $8,731.90 on the Strange lease and of $13,092.81 on the Peerless lease, which he bid above the amount of the first mortgage claim thereon, inured to the benefit of the holders of the second mortgage aforesaid, and should have been retained by defendant (or paid over to plaintiffs) to be applied on said second mortgage.
On the other hand, defendant contends that the plaintiffs are estopped in the premises for having consented to the sale and distribution of proceeds as made; that the property sold by the Continental Supply Company to the Globe Oil Company was never subject to plaintiffs' mortgage; that his bids were, in fact and in law, $90,313.03 for the Strange lease and $136,690.30 for thePeerless lease, and $21,824.71 ($8,731.90 plus *948 $13,092.81), for the movable property thereon, in which plaintiffs had no interest.
"The writ or commission directed by the court to the sheriff to sell certain property constitutes for him his sole guide. He has no authority to deviate from its terms. * * *" (Syllabus No. 3) — citing Landreaux v. Foley, 13 La. Ann. 116; Danniel v. Klein, 47 La. Ann. 928, 17 So. 466; Ford's Heirs v. Mills, 46 La. Ann. 338, 14 So. 845.
See, also, Succession of Bright, 38 La. Ann. 141.
Manifestly, payments on open account must be imputed to the price of the things first sold, unless specially agreed otherwise. R.C.C. 2163 to 2166. Hence the Continental Supply Company had been paid the price of the articles first sold, and had no vendor's lien on such property for the unpaid price of the things afterwards sold; nor had it any vendor's lien for the unpaid price of such things as had been disposed of.
We see no error in the judgment below.