16 La. 120 | La. | 1840
delivered the opinion of the court.
The syndic is appellant from a judgment, by which the tableau of distribution, filed by him is'amended, and Modeste Le Blanc, whose dative tutor the insolvent was, is placed thereon as a mortgaged creditor, for the whole of her claim; the syndic having put her down for a small part only.
In 1823, the insolvent was appointed dative tutor to the minor, and gave a special mortgage on a plantation and four slaves; and in 1832, he obtained an order or judgment of the Court of Probates, cancelling and erasing this mortgage, and also the legal mortgage existing in favor of said minor, and gave a new one on a small plantation alone. This was done in pursuance of the act of the legislature, approved' March llLh, 1830, entitled “an act in addition to the laws now in force, relative to tutors and curators of minors.” The plantation or land thus mortgaged, was surrendered, and sold by the syndic for eight hundred dollars, when the husband of the appellee became the purchaser; but on failing to comply with the terms of sale, it was sold a second time, at his risk and cost, for only one hundred and seventy-five dollars; for this sum she is placed on the tableau, as a mortgage creditor. She claims to be ranked as a general mortgaged creditor, on all the property of her tutor, for her entire claim, amounting to one thousand four hundred and seventy-two dollars and thirty-seven cents.
After the erasure of (he first mortgage, and before the surrender, several creditors obtained judgments and had them
^ The only question which this case presents, is whether the iorder of the Court of Probates, accepting the last mortgage, c^nd erasing and cancelling all the previous ones, is not a judgment which must have its effect, until it be reversed or
The District Court appears to have solved this question jn the negative. We are of opinion it erred. In the case of Lesassier vs. Dashiell, 14 Louisiana Reports, 467; we held, “ that whatever may be the result of a suit, by which a minor, on arriving at the age of majority, seeks to annul an order or proceeding like this, it cannot affect the rights of third persons, who purchased under the faith of these proceedings, sanctioned by the Court of Probates.”
’ The rights of the judgment creditors cannot be affected, 'Otherwise than by reversing or annulling the judgment of jthe Court of Probates; as by that judgment the special mortgage of the appellee was cancelled, as regards the slaves, on whose proceeds she seeks to claim a prior mortgage : and , ¶1 , , , , , , also, any legal or general mortgage which she might have had on the property of her tutor, up to the time of its rendition.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the opposition be dismissed; the appellee paying costs in both courts.
