Citizens' Bank v. Succession of Cuny

The opinion of the Court was delivered by Fenner, J. Plaintiff had a mortgage upon a certain tract of land.. A subsequent purchaser subject to the mortgage, sold tho land so mort gaged, with other lands belonging to him aud not included'iu. the mortgage, to a third person, the act reciting: “ This sale is made for $44,461 14, which the said purchaser has paid, as follows: “1st. By paying in cash $4,188 14; “2d. By assuming a mortgage in favor of the Citizens’Bank, resting; upon part of the property herein sold, amounting to $5,573;” And as evidence of said assumption she furnished a note for that sum, paraphed to identify it with the original act of mortgage, which, was delivered to and accepted by the bank. For the remainder of the price she furnished nine promissory notes,, which were secured by special mortgage and vendor’s lien on the whole-property sold. The act contains not a word showing that the note furnished to tho-Citizens’ Bank in evidence of the assumption was secured by any mortgage other than the original one assumed, which bore only on part of the land. There can he no doubt that the debt to tho Citizens’ Bank, being: assumed as part of the price of the whole property, became secured by a vendor’s privilege on the whole. This is well settled. Scionneau vs. Waguespact, 32 Ann. 283; DeL’Isle vs. Moss, 33 Ann. 164. But the privilege is very different from the mortgage. While the--bank’s mortgage primes all other claims on the part of the property [361] subject thereto, her privilege on the remaining property is only concurrent with that of the holders of the notes for the balance of the price. The bank, in this proceeding, obtained an order of seizure and sale-in execution of her mortgage, which is represented as affecting the whole property, and the order directs the seizure and sale of the whole property for the satisfaction of the mortgage. The petition contains no allusion to the vendor’s piivilege. Prom this order the defendants appeal, and inasmuch as the order in execution of the mortgage simply directs the seizure and sale of more property than is covered by the mortgage, the error is apparent and the order must be annulled and set aside. It is, therefore, ordered, adjudged and decreed that the order of seizure and sale appealed from be annulled and set aside, in so far as it orders sale of property not covered by original mortgage, and otherwise affirmed; plaintiff and appellee to pay costs in both courts. Poclié, J., recuses on the ground of interest.