73 So. 857 | La. | 1917
The judges of the Court of Appeal for the First Circuit, have certified
The plaintiff, Hibernia Bank & Trust Company, having a mortgage on the Evan Hall plantation, belonging t'o the defendant company, foreclosed the mortgage by executory proceedings and had the plantation seized and sold by the sheriff. J. P. Hudson, holding a promissory note signed by the defendant company, representing the balance due on the purchase price of 18 mules that he had sold to the defendant and that were placed on the plantation for its service and improvement, filed a petition of intervention and third opposition in the executory proceedings, and claimed the vendor’s lien and privilege to secure the principal and interest due on'the note, $1,905.36, and 10 per cent, attorney’s'' fee, $190.53, as stipulated in the note. The plantation and the mules were sold separately by the sheriff, pursuant to the order of the district judge. The amount realized from the sale of the plantation was less than the amount due to the mortgage creditor. The amount realized from the sale of the mules exceeded the amount due to J. P. Hudson, including the 10 per cent, attorney’s fee.
Conceding that the debt due to J. P. Hudson, amounting, in principal and interest, to $1,90^36, is secured by the vendor’s lien and" privilege on the 18 mules, and that the vendor is entitled to be paid that amount from. the proceeds of the sale of the mules in preference to the mortgage creditor, the latter contends that the 10 per cent, attorney’s fee, $190.53, forms no part of the purchase price of the mules, is not secured by the vendor’s lien, an& should not be paid from the proceeds of the sale of the mules to the prejudice of the mortgage creditor.
The question propounded by the Court of Appeal therefore is whether the vendor’s lien • - applies to and secures the 10 per cent, attorney’s fee stipulated in the promissory note, as well as the principal and interest, due to J. P. Hudson.
A case somewhat analogous to the one under consideration was that of Henderson et al. v. A. Meyers & Bro. (A. Meyers & Bro., Ltd., Interveners'), 45 La. Ann. 791, 13 South. 191; where it was held that the lessor’s lien or privilege secured the payment of the attorney’s fee stipulated in the promissory notes representing the amount of the rent due. The opinion, as reported, does not disclose that the right of the lessor to the lien or privilege to secure the attorney’s fee stipulated in the rent notes was contested; but the original record in the archives of this court discloses that it was. And the judgment of the district court, in so far as it recognized the lessor’s lien or privilege as securing the 5 per cent, attorney’s fees stipulated in the rent notes, was affirmed on appeal.
Pursuant to article 101 of the Constitution, our instruction to the Court of Appeal is that the intervener or third opponent, J. P. Hudson, is entitled to be paid the 10 per cent, attorney’s fee, as well as the principal and interest, stipulated in the promissory note representing the price of the 18 mules, from the proceeds of the sale of them, in preference to the holder of the special mortgage on the plantation on which the mules were placed by the owner for its service and improvement.