2 Rob. 27 | La. | 1842
The syndic of the creditors of John Wilcox having filed a tableau of distribution, on which he placed the children of the insolvent, in the right of their deceased mother, as privileged creditors for their share of the community, which was dissolved in 1828 by the death of their mother, amounting to upwards of twenty thousand dollars, and certain creditors in New York, represented by Clark, Hunt& Philips, as trustees, or mortgage creditors for $25,206 08, and McCawley as a creditor with the vendor’s privilege for a small note, various oppositions were filed, and from a judgment pronounced thereon, the present appeal has been taken.
I. Wilcox being indebted to numerous persons inNew-York, on the 25th October, 1834, executed in favor of certain trustees a mortgage upon several houses and lots in New Orleans to secure the payment of their debts, amounting in all to $25,206 OS, for which a great number of notes has been given which are set forth in the instrument of mortgage. In this deed, which is in the common law form, nothing is said of any previous incumbrances upon the property ; but in a previous contract between the same parties, containing the preliminaries of the arrangement thus made, and which bears date the 10th of October, 1S34, pre-existing mortgages are alluded to without being specified, and the trustees agreed, that notwithstanding their bond and mortgage, Wilcox should be at liberty to renew the present incumbrances by mortgages if he should think proper and feel himself constrained so to do, such renewed mortgages to have the same preference as they now have, Then comes the clausa which has given rise to this controversy ; “ And it is further agreed by and between the said parties hereto, that said Wilcox is to be at liberty to sell any part or portion of the real estate so placed under mortgage, on his paying to the said trustees, or their attorney, or substitute, a proportion of the pur-
It appears that, among others, there existed a mortgage in favor of Pritchard for about $15,000. In the autumn of 1834, Wilcox sold one of the pieces of property in*-Camp street to Lee for $11,000, but could not make a conveyance because Tulane, the agent of the trustees, refused to cancel the mortgage of his principals, unless Wilcox would pay a part of the purchase money to him in conformity to the agreement of the 10th of October. In consequence of that refusal the sale was not completed. This is the act of the trustees which is complained of as having caused great damage to Wilcox, and which damage the judge of the District Court estimated and assessed as equal to the whole balance of the debt, apparently due at the time of the trial. That was the only occasion on which Tulane, or any other agent of the creditors, declined to cancel the mortgage on any part of the property. The question then is, whether Tulane was bound, as the agent of the New York creditors, to release the mortgage under the circumstances shown by the record, and, if so, what damage did Wilcox sustain 1
If the sale of the lot had been, as Sterrett, one of the witnesses, and who was the attorney of Pritchard, supposes, under an order of seizure at the suit of Pritchard upon his prior mortgage, it was idle to apply to subsequent mortgagees to give a release, because such subsequent mortgages became extinct by a judicial sale under the first. This we cannot suppose was the case; and it would seem from other testimony, that it was a sale at auction, at which Lee was the highest bidder, and probably was intended to provide for the payment in part of Pritchard’s .debt. The question then arises, was Tulane bound to release the mortgage of his principal upon that property, and if so, what damage did his refusal occasion to the insolvent ?
The construction of that part of the agreement has been the subject of much argument and even conjecture. If we understand it, literally, it is clear that in no case were the New-York creditors
II. The heirs of Wilcox’s wife were allowed about $2,'600, as their share of the community formerly existing between the insolvent and his wife, who died in 1828. No inventory was taken, and it is not shown that any tangible property existed at the time. But it is said by the district judge, that there appears on McDou-gall’s books a balance in favor of Wilcox, on the first of June, of $5,285, which was settled by cash and bills in November, 1828,-.
III. With respect to McCawley’s claim to be set down as a mortgage creditor, for the amount of a small note of $312, the evidence shows thaf he has no claim whatever. He admits himself that he has been paid the amount of the note. No person claims as subrogated to his rights in virtue of the payment.
It is therefore ordered that the judgment of the District Court be avoided and reversed, so far as it relates to the claim of the heirs of Wilcox’s wife, and of Clark, Hunt & Philips, as trustees of the New York creditors ; and that the tableau be further amended by striking from it the claim of the said heirs, and by reinstating Clark, Hunt & Philips, trustees, as mortgage creditors for the amount due upon the said mortgage, to wit, the sum of $23,667 31, with interest at seven per cent, from March 27, 1S41 ; and that the tableau in other respects remain as by the judgment of the District Court; and that thus amended it be homolo-gated and approved. The costs to be paid by the mass.