49 La. Ann. 1019 | La. | 1897
The opinion of the court was delivered by
This appeal is by the administratrix of the succession of the deceased from the judgment maintaining the opposition of the ordinary creditor to the amount proposed by the tableau of distribution to be awarded the mortgage creditor as the proceeds of the mortgaged property.
The sale of the Oakland plantation, purchased by the deceased, was dissolved, at the suit of the vendor, for non-payment of the price. The questions incident to that dissolution, i. e., the purchase price to be returned by the vendor and the improvements made by the purchaser to be reimbursed to him; and the amount of the revenues of the property during his possession to be returned to the vendor, were before us in 1895. Vincent vs. Phillips, 47 An. 1238. Our decree on this previous appeal corrected an error of the lower
The note held by the mortgage creditor was originally issued by the maker as a collateral, after serving that purpose was returned and reissued by him to the present creditor. The opponent, contends that the mortgage was extinguished by the return of the note.
On the first proposition urged on behalf of the opposing creditor, that the fund is -not subject to the mortgage, the origin of the fund is of controlling influence. It will not be controverted that though the sale may be dissolved for non-payment of the price, yet until dissolved the purchaser in the exercise of his ownership can mortgage the property. Civil Code, Arts. 2042, 3301. It follows that the mortgage thus created will attach to the property subject to the vendor’s right to dissolve the sale for non-payment of the price, and it is equally clear the mortgage will operate upon any residue derived from the property after the demand of the unpaid vendor is satisfied. In the adjustment of the accounts on the dissolution of this sale, the purchaser was allowed besides the price he had paid the value of the improvements he put on the property. The vendor was allowed the revenues during the ownership of the purchaser. The value of the improvements and the price exceeded the revenues, the improve - ments alone exceeding the price returned. Practically, it was the improvements on the property which made the excess over the revenues, which the administratrix of the deceased purchaser now has in her hands, and it seems to us as the improvements were part of the plantation, the fund, in effect derived on account of the improvements, must be deemed subject to the mortgage. It attaches to the improvements on the immovable mortgaged, and clings, we think, to the proceeds in the administratrix’ hands, representing the improvements.
The proposition that the mortgage was extinguished by the return of the note to the maker, and the mortgage could not be revived by the
It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed that the opposition of the opponent be and it is hereby dismissed with costs.