Converse, Kennett & Co. v. E. Hill & Co.

Land, J. The plaintiffs, judgment creditors of defendant, caused certain merchandise to be seized and sold by the Sheriff, under a writ of fieri facias issued on their judgment. Letchford & Co., Haggerty & Co. and Gould & Co. filed third oppositions and claimed the proceeds of sale in the hands of the Sheriff, on the grounds, that they were the unpaid vendors of the merchandise sold, and had a privilege on the proceeds superior to that of plaintiffs. The facts are not disputed, that the third opponents are the vendors of the goods, and that the price is unpaid. The plaintiffs oppose their claims in argument, on three grounds : 1st, because they have no privilege; 2dly, because the goods were sold on a credit and 3dly, because the defendant is solvent. Article 3194 of the Code provides that “ he who has sold to another any movable property, which is not paid for, has a preference on the price of the property over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser. So that, although the vendor may have taken a note, bond, or other acknowl-edgement from the buyer, he still enjoys the privilege.” The privilege granted by this Article of the Civil Code is not conditional, depending on the uncertain fact of the solvency or insolvency of the buyer, but is positive, without condition or limitation, if the property sold still remains in the possession of tho purchaser. These grounds, therefore, are not tenable. On the trial below, the plaintiffs objected to the introduction of evidence on behalf of Gould & Co., on the ground that E. Hill <& Co., defendants in execution, had not been made parties to their third opposition. The objection was overruled, and the evidence received. The court did not err. E. Hill <$> Co. were not necessary parties. Article 401 of the Code of Practice prescribes that the third opposition shall be served on the seizing creditor, and the Sheriff, but does not require that the defendant in execution shall be cited, or made a party to the proceeding. 1 An. 144. There is no error in the judgment of the lower court. Judgment affirmed, with costs in both courts.