24 La. Ann. 381 | La. | 1872
The main facts in this case, essential to its proper de- ■ cisión, seem to he the following :
In 1867 the plaintiff was the owuer and holder of a mortgage note for $2000, with some years arrears of interest, secured on a plantation in the parish of Concordia. This note was one of a concurrent series secured- by the same act, and amounting in capital to the sum of $31,000.
On the second of March, 1867, the mortgaged property was sold under foreclosure at the suit of S. Duncan (the elder), the holder of those other notes, and purchased by S. Duncan (the younger), the defendant in this action, for the appraised price of $33,395 75, an amount somewhat less than the sum due on all the notes in principal and interest.
The defendant was hound to retain in his hands for the benefit of the plaintiff’s note, the pro rata of the price coming thereto by law, and to pay the same with interest when demanded. 21 An.. 499; 14 An. 149.
The principal defense urged is that of peremption. The defendant contends that the mortgage was first recorded in 1859, and was not re-inscribed, and that the plaintiff, whose suit was not instituted till 1871, lost his rights against defendant by peremption. This, we think, an error. The obligation of defendant springs from his purchase, and the duty of retaining in his hands the proportion of price coming to a-concurrent mortgage note not embraced in the judgment under wliick the sale was made, and to deliver such proportion to the holder of such note. An hypothecary action is provided against him. C. P. 909; 16 La. 163; 5 An. 306. As to him, the mortgage of the concurrent creditor requires no reinscription, for lie has assumed the debt to the extent of its proportion of the purchase money, which he must retain. .4 Rob. 44, Noble v. Cooper.
The court a qua gave judgment in favor of plaintiff for the whole amount of his note with interest. Upon the principles quoted above,, it should have been for the pro rata of the price bid by defendant.
It is therefore ordered that the judgment appealed from be amended, so as to reduce the same to the sum of two thousand two hundred and nine dollars, with eight per cent, per annum interest, from March 2,. 1867, and costs of the lower court, and that plaintiff pay costs of appeal.