3 Rob. 513 | La. | 1843
Among the admissions of the parties in the record, is the following: “ The land on which the Rail Road has been made does not belong to the Company, none of the owners having been expropriated.” It is not, therefore, independently of the act of the legislature, susceptible of being mortgaged, and is not affected by judicial or legal mortgages. That act, we doubt not, rendered it susceptible of being mortgaged, and subjected it to a special conventional privilege, so far as the State is concerned, and for the purpose of securing the reimbursement of the loan ; but the Railway is not an immoveable, either by nature or destination, if the soil over which it is laid belongs to another. The rails, therefore, did not become immoveable by being laid down.
It is also clear that future property can never be the subject of conventional mortgage. Civ. Code, art. 3276. To this it is replied by the Attorney General, that the mortgage results from the special law passed in this case. We do not so understand it. The act does not create the mortgage, nor could it without the
The application of these principles to the cases of,the different creditors who have made opposition, is not difficult.
The slave Peter acquired from Phelps, and the lot of ground in the faubourg Franklin, are not mortgaged to the State, and are subject to the judgment of Millaudon, Albert, and the Orleans Insurance Company.
De Lizardi & Co. claim the privilege of vendors on the iron rails laid down on the road, except for the first six miles ; and their right had been recognized, and they had actually seized under execution, when the State interfered by injunction, alleging a superior right under the statute, and the acts of mortgage and privilege. The rails not having been attached to an immoveable, were still, in our opinion, subject to the vendor’s lien, and the injunction obtained by the State ought not to be sustained.
The same principles apply to the other privileged creditors; and we are of opinion, that the opposing creditors have a right to be paid in preference to the State.
It is, therefore, ordered, that the judgment of the District Court be reversed ; that the opposing creditors be first paid out of the the property subject to their privileges; and that, to this extent, the injunctions of the opposing creditors be perpetuated.