32 La. Ann. 412 | La. | 1880
The opinion of the court was delivered by
R. W. Dougherty died in June 1877. John B. Durham was furnishing him supplies for the cultivation of his crop during that year, and at the time of his death the account for supplies was $917.91 in amount. The contract for the supplies had been recorded. He continued furnishing them under the contract during the remainder of the year, the widow and children remaining on the place, and a grown son acting as overseer. The crop was delivered to Durham, and was •sold by him, and did not pay all of his debt. There was no administration of the succession as yet, and the settlement of the account with Durham was complete, so far as the crop effected it, before the succession was formally opened. This was not done until March 7,1878, when R. R. Dougherty, the son who was overseer, was appointed administrator.
Durham had a mortgage upon a plantation of the deceased, called Red Chute, and sued out executory process to foreclose it in February, a, month before the administration was applied for. There was litigation. Marks and Mrs. Pickett filed oppositions claiming the proceeds of sale, :and on appeal we adjudicated their rights at Monroe, recognising Durham and Mrs. Pickett as concurrent mortgage creditors with vendor’s privilege, and fixing Marks’ position as that of a judgment creditor with judicial mortgage. Durham then bought Mrs. Pickett’s claim, and at the sale bought the place for less than the aggregate of the two claims he held. *
This place was in the hands of the sheriff before and at the time
Durham also advanced to and supplied the place for the crop of 1878, and the proceeds of its sale leaves a small balance due from him to the administrator. Durham had advanced money to pay the expenses of administration, paid the burial expenses and some others, which were repaid by the sale of the property.
Seven mules, three waggons, and some farming implements upon the Red Chute plantation were included in the seizure under executory process of Durham, but before that litigation was terminated and a sale had under that process, the administrator gold them at probate sale. Durham prays an amendment of the judgment by recognising his vendor’s privilege and mortgage upon these movables, as attached to-the realty, and applying the proceeds of their sale to the further payment of his debt, which had not been extinguished by the sale of the land. We think he is entitled to it.
Marks opposes various items of the account which need be only briefly noticed. The widow’s portion of one thousand dollars was properly allowed, the proof of her necessitous circumstances being satisfactory. The overseer’s wages were moderate, and his claim had been recorded, and was rightly allowed as a privilege on the crops. The Holliday and Herold debts which he opposes as not privileged were classified only as ordinary debts. He insists that the account must stand as to the credits admitted by the administrator. These include the proceeds of sale of the Red 'Chute plantation, and cotton crops of 1877 and 1878. We have already said as to the first that they were absorbed by the mortgage debt, and as to the second, they were applied to the privilege of the furnisher of supplies.
The lower court increased the fees of the succession attorneys without good cause, or proof to justify it. They were stated on the account at $281.25 and they must remain at that sum. Therefore
It is ordered and decreed that the judgment of the lower court is amended by reducing the sum allowed the attorneys to $281.25, and by recognising J. B. Durham’s mortgage and vendor’s privilege as operating upon the mules, waggons, and farming implements, and applying the proceeds of their sale to the further extinguishment of his mortgage debt, and as thus amended, that it is affirmed, the costs of appeal ta be borne by Marks, as well as the costs of his opposition, and all other-costs at the charge of the succession.
