Lucius Quintus Cincinnatus Lamar

“ Assuming, for present purposes, that the facts relative to the purchase by complainant of the two notes which form the basis of his claim, and also to the subrogation, are as found by the court below, we pass to the assignment of error. It is clear that if this were an original suit directly on the note, to foreclose the mortgage, it could not be maintained, because, under the provisions of the Louisiana law, the note would be prescribed and the mortgage would be perempted. ”

“ The duty of Lovell, as executor of the estate of Miss Quitman, to protect the property, required him to set up the defense in the cross-bill, as a set-off against the claim and the prayer of the complainant's original bill. ”

“ This is a suit in equity, in the nature of an hyportecary action, under the Civil Code of Louisiana, brought in the court below by George D. Cragin, a citizen of New York, against William S. Lovell, a citizen of Mississippi, and Orlando P. Fisk, a citizen of Michigan. Its object was to have a lien declared in favor of the complainant, upon certain real property belonging to the defendant Lovell, and, in default of the payment thereof by Lovell, to have the property sold to satisfy it. ”

“ But when the property sold is subject to privileges or special mortgages in favor of other persons besides the suing creditor, the sheriff shall require from the purchaser, and he shall be compelled to deliver to the creditor whether the sale be made for ready money or on credit, only the surplus of price beyond the amount of the privileges or special mortgages, if there be any surplus.' Art. ”

“ The defendant contends that the mortgage was first recorded in 1859, and was not reinscribed, and that the plaintiff, whose suit was not instituted till 1871, lost his rights against defendant by peremption. This we think an error. The obligation of defendant springs from his purchas, a nd the duty of retaining in his hands the proportion of price coming to a concurrent mortgage note not embraced in the judgment under which the sale was made, and to deliver such proportion to the holder of such note. An hypothecary action is provided against him. ”

“ Certain provisions of the Civil Code and the Code of Practice, as well as a number of decisions of the supreme court of the state, are relied upon to support this view all which we shall now consider. ”

“ When there exists a mortgage or privilege on the property put up for sale, the sheriff shall give notice, before he commences the crying, that the property is sold subject to all privileges and hypothecations, of whatsoever kind they may be, with which the same is burthened, and with the condition that the purchaser shall pay in his hands whatever portion of the price for which the property shall be adjudicated may exceed the amount of privileges and special mortgages to which such property is subject.' 'Art. ”

“ When a seizing creditor has a privilege or a special mortgage on the property seized, for the debt of which all the installments are not yet due, he may demand that the property be sold for the whole of the debt, provided it be on such terms of credit as are granted to the debtor by the original contract for the payment of such installments as are not due.' 'Art. ”

“ The defendant Lovell, by way of cross-bill, then set up: (1) That by reason of the facts set forth in the foregoing answer, and of the promises made by the complainant to the Quitmans, as therein set forth, complainant became liable for the payment of the whole of the purchase price of the plantation represented by the notes given by Fisk ”