Howell, J.
The plaintiff alleges that he purchased a certain plant[224]*224ation in the parish of St. Bernard at sheriff’s sale under executory process issued on a first mortgage, and that all other mortgages were canceled according to law; but the defendants have since asserted a subsequent mortgage as still subsisting, and have taken the initiatory steps to issue executory process on the same, thus casting a cloud on his title, impaired his credit as owner, and caused him damage.
He prays that they be injoined from suing out any writ of seizure and sale on their said pretended mortgage, and seizing his plantation, and also from asserting any right upon the same resulting from their said act of mortgage, and that they be condemned to pay damages.
The defendants filed exceptions to the jurisdiction, Us pendens, no cause of action, and insufficiency of averments for an injunction, which were overruled below and are not urged before us.
The answer sets up the existence and reality of their claims and mortgage, the nullity of the sale and adjudication to plaintiff, because by express stipulation in their act of mortgage, which they designate as a concordat between their debtors and all the creditors including the first mortgagee, the said plantation could not be sold for cash, as was done, but should have been sold on a credit of one, two and three years, and the further averment that the adjudication to plaintiff was made by deception, and for a trifling amount compared with the real value, and what the plaintiff had offered a short time before; and the defendants pray that the injunction be dissolved with damages, the adjudication to plaintiff be annulled, and their mortgage be recognized and enforced upon the said plantation. They also asked that the first mortgageor and the common debtors be made parties to this suit. The first mortgageor excepted to being made a party to this litigation, and the exception being overruled, she filed an answer. .There was a judgment perpetuating the injunction, declaring the rights of the subsequent mortgagees, are transferred by the sale to the proceeds and are no longer subsisting mortgages, from which the defendants appealed.
From the view we have taken of the case, and the questions presented by the principal parties, it is unnecessary to pass on the exceptions filed by the first mortgage creditor, under whose'mortgage the sale to plaintiff was made.
The decision .of the controversy depends on the interpretation of á clause of the concordat invoked by the defendants, as fixing the terms upon which the mortgaged property was to be sold — they contending that this stipulation applied to the first mortgage, while the plaintiff and Mrs. Crozat, the first mortgagee, contend that it applies only to the concordat, and that Mrs. Crozat expressly reserved all her mortgage rights, which she could enforce when the condition on which she became a party to the concordat, should fail or be violated.
[225]*225The Villerés had two mortgage creditors, Mrs. Crozat and the succession of Olivier, whose claims bore eight per cent, interest, and several ordinary or chirographic creditors, the consolidated association and others. The above motgage creditors will be designated as first, and the others as third mortgage creditors. Being unable to pay their debts, the Villerés entered into a concordat before Ducatel, notary, with all their creditors, by which they were to pay the first mortgagees only five per cent, interest annually, and the ordinary debts without interest in seven annual installments, for which they executed their notes, and a third mortgage on their plantation to secure the payment thereof. The mortgage claims of Mrs. Crozat and the succession of Olivier were to remain the same without reduction of the principal during the seven years upon the payment of the five per cent, annually. In case of nonpayment of even one of the notes thus furnished (to these third mortgagees), their creditors could seize the property thereby mortgaged and sell it for the whole of their claims, on a credit of one, two and three years, with eight per cent, interest from the day of sale, in notes secured by mortgage on the property sold, and divided into coupons among said creditors.
The five per cent interest was paid for several years, but on subsequent failure of such payment, Mrs. Crozat caused her mortgage, executed before Boudousquié, notary, to be foreclosed, and the plaintiff became the purchaser at a little over two-thirds of the appraised value of the property
The clause of the concordat which has given rise to the dispute is as follows:
“The said Mr. Pierre Maspero, administrator of the succession of Mr. Cesaire Olivier, and the said Mrs. Widow Manuel Crozat do hereby declare, that in order to facilitate the said Messrs. Villeré and the said Mrs. Bodin in discharging themselves of their indebtedness to their creditors, they consent and acquiesce with all that is hereinbefore written, and to receive nothing during the said seven years, in deduction of the sums in principal due by mortgage to the succession of the said Cesaire Olivier, deceased, and to her, the said Mrs. Widow M. Crozat, but under the express condition that an annual interest of five per cent, upon said sums shall be paid to them, and that nothing in the present act shall be so construed as to prejudice in any manner their rights, privileges, mortgages, and actions resulting from the above described mortgage acts before Adolphe Boudousquié, which acts shall remain in full force and effect, without any derogation or innovation by virtue of these presents, except what has been hereinbefore stipulated in relation, to the delays granted, and to the mode of sale in case of seizure, they reserving to themselves, in case of seizure and sale [226]*226before the expiration of the said seven years, the right of availing themselves of their rank of first mortgage creditors, to the extent of the sum of twelve thousand five hundred and ninety-seven dollars and welve cents for the succession of Mr. Cesaire Olivier, and of six thousand dollars for Mrs. Widow Manuel Crozat.”
The question is, did this bind Mrs. Crozat, in case of foreclosing her mortgage, to cause the property to be sold on a credit of one, two and three years? We think not; for the reason that her mortgage was not novated and her note was not identified with the concordat, and she could not proceed under it to enforce her mortgage rights. Her purpose, in becoming a party to the concordat, was simply to give the Villerés an opportunity to pay their debts, by suspending the enforcement of her mortgage for a given time, provided the. interest on her-claim was punctually paid. The failure to pay this interest, which was made the express condition of her agreement to the delay, would release her from the obligation of the said contract, and restore her toller full rights under her own act of mortgage.
The exceptions made and on which the defendants rely, refers to the only modification of her mortgage rights caused or affected by the said act, to wit, the granting of the delay and the mode of sale provided for by the act. In no other respect was her mortgage to be affected, and this depended on the condition she imposed, to wit, the payment of the interest.
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Howell, J.
The plaintiff alleges that he purchased a certain plant[224]*224ation in the parish of St. Bernard at sheriff’s sale under executory process issued on a first mortgage, and that all other mortgages were canceled according to law; but the defendants have since asserted a subsequent mortgage as still subsisting, and have taken the initiatory steps to issue executory process on the same, thus casting a cloud on his title, impaired his credit as owner, and caused him damage.
He prays that they be injoined from suing out any writ of seizure and sale on their said pretended mortgage, and seizing his plantation, and also from asserting any right upon the same resulting from their said act of mortgage, and that they be condemned to pay damages.
The defendants filed exceptions to the jurisdiction, Us pendens, no cause of action, and insufficiency of averments for an injunction, which were overruled below and are not urged before us.
The answer sets up the existence and reality of their claims and mortgage, the nullity of the sale and adjudication to plaintiff, because by express stipulation in their act of mortgage, which they designate as a concordat between their debtors and all the creditors including the first mortgagee, the said plantation could not be sold for cash, as was done, but should have been sold on a credit of one, two and three years, and the further averment that the adjudication to plaintiff was made by deception, and for a trifling amount compared with the real value, and what the plaintiff had offered a short time before; and the defendants pray that the injunction be dissolved with damages, the adjudication to plaintiff be annulled, and their mortgage be recognized and enforced upon the said plantation. They also asked that the first mortgageor and the common debtors be made parties to this suit. The first mortgageor excepted to being made a party to this litigation, and the exception being overruled, she filed an answer. .There was a judgment perpetuating the injunction, declaring the rights of the subsequent mortgagees, are transferred by the sale to the proceeds and are no longer subsisting mortgages, from which the defendants appealed.
From the view we have taken of the case, and the questions presented by the principal parties, it is unnecessary to pass on the exceptions filed by the first mortgage creditor, under whose'mortgage the sale to plaintiff was made.
The decision .of the controversy depends on the interpretation of á clause of the concordat invoked by the defendants, as fixing the terms upon which the mortgaged property was to be sold — they contending that this stipulation applied to the first mortgage, while the plaintiff and Mrs. Crozat, the first mortgagee, contend that it applies only to the concordat, and that Mrs. Crozat expressly reserved all her mortgage rights, which she could enforce when the condition on which she became a party to the concordat, should fail or be violated.
[225]*225The Villerés had two mortgage creditors, Mrs. Crozat and the succession of Olivier, whose claims bore eight per cent, interest, and several ordinary or chirographic creditors, the consolidated association and others. The above motgage creditors will be designated as first, and the others as third mortgage creditors. Being unable to pay their debts, the Villerés entered into a concordat before Ducatel, notary, with all their creditors, by which they were to pay the first mortgagees only five per cent, interest annually, and the ordinary debts without interest in seven annual installments, for which they executed their notes, and a third mortgage on their plantation to secure the payment thereof. The mortgage claims of Mrs. Crozat and the succession of Olivier were to remain the same without reduction of the principal during the seven years upon the payment of the five per cent, annually. In case of nonpayment of even one of the notes thus furnished (to these third mortgagees), their creditors could seize the property thereby mortgaged and sell it for the whole of their claims, on a credit of one, two and three years, with eight per cent, interest from the day of sale, in notes secured by mortgage on the property sold, and divided into coupons among said creditors.
The five per cent interest was paid for several years, but on subsequent failure of such payment, Mrs. Crozat caused her mortgage, executed before Boudousquié, notary, to be foreclosed, and the plaintiff became the purchaser at a little over two-thirds of the appraised value of the property
The clause of the concordat which has given rise to the dispute is as follows:
“The said Mr. Pierre Maspero, administrator of the succession of Mr. Cesaire Olivier, and the said Mrs. Widow Manuel Crozat do hereby declare, that in order to facilitate the said Messrs. Villeré and the said Mrs. Bodin in discharging themselves of their indebtedness to their creditors, they consent and acquiesce with all that is hereinbefore written, and to receive nothing during the said seven years, in deduction of the sums in principal due by mortgage to the succession of the said Cesaire Olivier, deceased, and to her, the said Mrs. Widow M. Crozat, but under the express condition that an annual interest of five per cent, upon said sums shall be paid to them, and that nothing in the present act shall be so construed as to prejudice in any manner their rights, privileges, mortgages, and actions resulting from the above described mortgage acts before Adolphe Boudousquié, which acts shall remain in full force and effect, without any derogation or innovation by virtue of these presents, except what has been hereinbefore stipulated in relation, to the delays granted, and to the mode of sale in case of seizure, they reserving to themselves, in case of seizure and sale [226]*226before the expiration of the said seven years, the right of availing themselves of their rank of first mortgage creditors, to the extent of the sum of twelve thousand five hundred and ninety-seven dollars and welve cents for the succession of Mr. Cesaire Olivier, and of six thousand dollars for Mrs. Widow Manuel Crozat.”
The question is, did this bind Mrs. Crozat, in case of foreclosing her mortgage, to cause the property to be sold on a credit of one, two and three years? We think not; for the reason that her mortgage was not novated and her note was not identified with the concordat, and she could not proceed under it to enforce her mortgage rights. Her purpose, in becoming a party to the concordat, was simply to give the Villerés an opportunity to pay their debts, by suspending the enforcement of her mortgage for a given time, provided the. interest on her-claim was punctually paid. The failure to pay this interest, which was made the express condition of her agreement to the delay, would release her from the obligation of the said contract, and restore her toller full rights under her own act of mortgage.
The exceptions made and on which the defendants rely, refers to the only modification of her mortgage rights caused or affected by the said act, to wit, the granting of the delay and the mode of sale provided for by the act. In no other respect was her mortgage to be affected, and this depended on the condition she imposed, to wit, the payment of the interest. The delay was given during which the chirographiccreditors alone were to be paid the principal of their claims, and the mode of sale fixed was for their benefit, and to be resorted to by them alone, in ease any one of their notes should not be paid. It was only their notes that were identified with the said act, the payment of which alone could be enforced under the said act, and a sale made under it (the said act) was to be made on the credit specified; and the first mortgage creditors would, at such sale, “have the right of availing-themselves of their rank,” that is, have the right to assert their rank of first mortgage creditors, and require the payment of their claims in full. But if they should have the occasion so to do, and determine to enforce their own mortgages, they could do so only upon and by virtue of the act, which created their mortgage, and without any regard to the stipulations of the concordat, as there was no necessary connection between the different acts of mortgage in favor of the two different classes of creditors. It might well have happened, in the course of1 events, that the debtors would have paid the five per cent, interest on the prior or first mortgages, and failed to pay the last mortgage creditors. Under the concordat, so long as this five per cent, interest was. paid, the prior or first mortgage creditors had no right to sue or foreclose their mortgage. But if any one of the last mortgage creditors [227]*227was not paid, he could proceed to sell, under the concordat, although the interest might be paid to the others; and in such contingency, the act (concordat) provided for the delay and terms on which the sale should be made under it, and the manner in which the prior mortgage rights would be preserved. This construction gives a reasonable interpretation and effect to every clause and portion of the act. As the sale did not take place under this last mortgage, the stipulations in it as to delays and terms of sale had no application to the case.
Mrs. Crozat did not expressly consent, in the concordat, to enforce her first mortgage under the stipulations of that act, and it is not to be presumed that she gave up more of her rights than were clearly and distinctly waived or relinquished. This act is to be construed liberally in her favor, as no one is easily presumed to give.
When the purpose and object of the concordat are considered, and all its stipulations, reservations and exceptions construed together, it is obvious, in our opinion, that Mrs. Crozat intended to be bound by any of its provisions, only on condition that the stipulated interest should be regularly paid, and that failing, she had the right to seize and sell as she did.
There is no evidence of deception or ill practices in the appraisement and sale of the property, and having been sold for two-thirds of the appraisement, we see no legal grounds for disturbing the adjudication; and the sale having been legally made, and the price being absorbed by the first and second mortgages, that in favor of the third mortgagees was properly canceled.
Judgment affirmed.