Cucullu v. Walker

VooRiriEs, J. The defendant purchased the plaintiff’s plantation for the sum [199] of $185,000. There was a cash payment of $25,000 ; and the residue of the price was made payable in several instalments, some of which are now matured. Previously to the sale there existed on the plantation a mortgage in favor of Villavaso for the sum of $20,000, and of C. Olivier for the sum of $10,000. The purchaser assumed to pay the former debt; and two of the purchase notes, each for the sum of $5,000, were given in lieu of the-latter. ' The object of the present suit is to compel the payment of these two mortgage debts. Neither of the holders, Olivier and Villavaso, has been made a party to this proceeding, although they are the creditors, and as such are entitled to the proceeds of the sale, should an execution issue. Villavaso, besides being- the creditor originally of the plaintiff, with the right of mortgage, is entitled to the advantages stipulated on his behalf in the act of sale. As he has signified his assent, these cannot be revoked without his consent. C. C. 1884,1896. With regard to the Olivier notes, the plaintiff has parted with his interest in them by his indorsement. In the absence of parties having such an interest in the premises, it is obvious that the matter in dispute is not susceptible of final adjudication. It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and that, leave being granted'to the plaintiff to make proper parties, this case be remanded for further proceedings, the plaintiff and appellee paying the costs of appeal.