No. 3841 | La. | Mar 15, 1872

IIowell, J.

II. S. Buckner caused a writ of seizure and sale to issue against Thomas M. Nowell and the Shackleford plantation to be seized. Illat Newell injoined the sale of the undivided half thereof, claimed by him, on the ground that having- mortgaged his half as an additional security for tho debt of Thomas M. Newell, his father, he is not personally bound and is entitled to tlie benefit of discussion; he also claimed by way of third opposition in tho same proceeding the proceeds of his father’s half, by preference, by virtue of a judgment against his father as tutor with mortgage superior to that of Buckner, who answered that Illat Nowell has by notarial act relinquished all his claim upon said plantation in favor of the mortgage which ho is enforcing,.and denied tlie valid existence of said Mat’s claim and mortgage against Ms father. Judgment was rendered on twenty-fifth October, 1870, dissolving tho injunction, sustaining the plea of discussion, and ordering the sale of Thomas M. Newell’s half, and if the proceeds thereof are not enough to satisfy Buckner’s claim, then Illat Newell’s half to be sold to pay the balance. No specific reference is made in this decree to Mat’s demand for the proceeds of his father’s half by preference. Prom this judgment Mat Newell took a devolutive appeal on twenty-fifth September, 1871.

In the mean time the property was again advertised, and each half adjudicated to Buckner on first July, 1871. Pending tlie advertisement, Mat Newell filed a sworn petition of third opposition, claiming the proceeds as before. To this the plea of res judicata was opposed and sustained on eighteenth April, 1871. Prom this judgment Mat Newell took a suspensive appeal on twenty-seventh April, 1871.

A motion is made to dismiss the appeal herein, on the ground that it is impossible for this court to pass on the matters involved in this form, there being two distinct actions in which judgments were rendered and appeals granted at different terms of the court, and all blended in one record.

*186If it be possible for us to pass intelligently on the matters presented by these two appeals, tho motion can not, by its own terms, be sustained. As they have been ably argued both orally and by brief, we will endeavor to dispose of them.

As to the plea of res judicatft presented in the suspensive appeal, taken on twenty-seventh April, 1871, it need only be said that tho proceedings, embracing it, present the questions and rights which upon this branch of the controversy are presented in the devolutive appeal taken from the first judgment between the same parties, and maintaining the plea would not preclude an examination of said questions, which are regularly before us on said devolutive appeal.

Tho only question of any practical importance is tho right of preference and priority asserted by Illat Newell to the proceeds of his father’s half of the plantation sold, and its solution depends on the construction of the act of mortgage executed by said Illat Newell as security for his father’s debt. This act may he considered as a part of, or supplement to the one executed by his father, in which the latter hound himself to procure its execution, and it declares that, “in order to secure the payment of the said sum of nineteen thousand and seventy-eight dollars and fifty-four cents, the amount of the three promissory notes aforesaid, and in order also to secure the payment of all lawyers’ fees not exceeding five per cent, on tho amount for which it may he necessary to institute a suit, he, the said Illat Newell, does by these presents specially mortgage and hypothecate in favor of the said firm of Buckner, Newman & Co., and any and all future holder or holders of said notes or either of them, all and singular, his right, title, interest, share, property, claim and demand of any nature and kind whatsoever of, in and to the property referred to,” etc., describing' the property seized, which had been mortgaged by his father, Thomas M. Newell, as his property. The above act contains the clause that tho mortgageor will not “alienate or encumber tiie interest in said plantation, which he has or may hereafter have, to tho prejudice of this mortgage.”

In the foregoing language or any other part of the said act, we can discover nothing which is equivalent to a relinquishment or renunciation of Ms mortgage rights against or upon his father’s property arising from tho tutorship or otherwise, but simply a mortgage upon what was susceptible of being mortgaged, bis rights in and to the real property, and this was given as additional security to that given by Ms father in the act of mortgage executed by him, and that mortgage operated only upon his father's property, which was then subject to the minor’s mortgage. A renunciation of a right is not to bo presumed.

Nor does the fact that Illat Newell demanded the benefit of discussion imply such renunciation, for in the same petition he asserted his *187right of mortgage. The record satisfies tis that Illat Newell has not lost his superior right of mortgage upon the half of the land sold, which belonged to his father, and that he is entitled to the proceeds thereof, which are not sufficient to satisfy his claim.

It'is therefore ordered, that the judgment rendered herein on eighteenth April, 1871, and so much of the one rendered on twenty-fifth October, 1870, as disallows or denies the preference and priority asserted by Illat Newell, plaintiff to the proceeds of the half of the land sold herein as belonging to Thomas M. Newell, and condemns plaintiff to pay costs, be reversed, and it is now ordered that the said right of preference and priority be recognized, and that the proceeds of the one-half of the “ Shackleford plantation,” sold by the sheriff of the parish -of Tensas, on the first July, 1871, as the property of Thomas M. Newell, be paid to the plaintiff, Illat Newell, with costs in both courts.

Rehearing refused.