Taylorv. Crain's Administrator

iMorphy, J., delivered the opinion of the court. The plaintiffs and appellants complain that the judge a quo refused to place them as privileged creditors, for nine hundred and seven dollars, on a tableau of distribution filed by defendant, as administrator of the estate of William T. Crain ; their claim being for work and labor done and materials furnished in repairing two houses of the deceased.. We think the judge did not err. They show themselves, in their opposition, that no registry was made of any act or written agreement in relation to their bargain or undertaking. Whatever may have been the former dicisions of this court, when there is no written agreement or registry shown to have been made, there can be no difficulty or doubt on the subject since the promulgation of the Louisiana Code. It provides expressly “(hat no agreement or undertaking for work exceeding five hundred dollars, which has not. been reduced to writing and registered with the recorder of mortgages, shall enjoy the privilege above granted, i. e. the privilege of undertakers, &c.” It is clear then that, under this provision, when the work exceeds five hundred dollars, two requisites are indispensably necessary for the very creation of the privilege itself, even between the employer and the undertaker. The agreement must be reduced to writing, and it must be registered in the office of the register of mortgages. If the act is recorded within six days from its date, when it has been passed in the place where the registry of mortgages is kept, or adding one day more for every two leagues from the place where the act was passed, to that where the register’s office is kept, the privilege is valid against third persons, even from the date of the act, and confers a preference over creditors who have recorded mortgages before the date of its registry ; but if not recorded within the above specified time, the privilege degenerates into an ordinary mortgage, and will be good against third persons only from the time of its being recorded. Louisiana Code, 3240-41. Thus it is seen from these (wo provisions, when considered in reference to each oilier, that they do not authorize the inference which the plaintiffs’ counsel has attempted to draw from the rather [293] obscure wording of article 3241, to wit: “ That the neglect of recording the privilege can be taken advantage of only by the mortgage creditors.” It clearly appears, on the contrary, from the above provisions of law, that the plaintiffs have not taken the necessary steps to secure to themselves a privilege against their employer; and still less against the creditors of the estate, who must be viewed in the light of third persons. But even had the plaintiffs brought themselves strictly within the provisions of the law, the record discloses a circumstance which we apprehend must be equally fatal to their pretensions; one of the houses on which they have done repairs to the amount of eight hundred and sixty-one dollars and thirty-one cents, appears, from their own showing,to have been sold by the disceased some time before his death, to James A. Thom and Robert W. Dawson. The funds on which plaintiffs are endeavoring to enforce their liep, do not proceed from a sale made by the administrator of property belonging to the estate, and it is on these alone, that the creditors can exercise the rights and privileges which they had on the property left by the deceased. When a judicial sale is made of property subject to privileges or mortgages, it passes free of any incumbrance into the possession of the , , , , purchaser; and the proceeds remain in the hands of the curator or administrator, subject to the rights which the creditors had on the property itself. In this case, had the , , ' . , . plaintiffs’privilege ever existed, it must have continued to exist on the property in the hands of the vendees, and any balance of price paid to the administrator must be distributed among r r ° the ordinary creditors of the estate. , The l>rice of property subject to a privilege, ¿“cíaselo? the owner, when collected by his administrator, is íege^and^must be distributed among the ordinary creditors. claimffov work ■a'ho^areprescribed by the months,°if they hu^Ku'cd'doiiíira But the appellants have contended that their account being for materials furnished, and for work and labor done, they should be permitted to claim separately each amount, and that, each being under five hundred dollars, the formalities of an act and its registery were unnecessary. This would not better the situation of plaintiffs, for both claims being under five hundred dollars, they would then be barred by the prescription of six months, established by article 2747 of ihe Louisiana Code, which must be reckoned from the day [294] when the work was completed, and the record shows that the claim was set up two years after the work was done. It is, therefore, ordered, that the judgment of the Court of Probates be affirmed, with costs.