King v. Hicky

2 La. Ann. 367

Opinion

The judgment of the court was pronounced by

Rost, J.

*

This is an hypothecary action, instituted against the defendant, as third possessor, and the prayer of the petition is, that he pay the plaintiff’s claim, or that ho surrender the property mortgaged. He answers that he holds the slaves in controversy under a probate sale, by which the mortgage has been extinguished. He also pleads the prescription of five years against the note's, to secure the payment of which the mortgage was given. Judgment was rend-" ered in his favor, and the plaintiff appealed.

Under the state of facts presented by this case, the defendant is Without capacity to plead the prescription of five years upon the notes. That prescription is an exception which the debtor and his creditors alone can plead, and the obligation subsists until they avail themselves of it; if they do not, courts of justice cannot supply it. It is in evidence that a demand was made of the original debtor, more than thirty days before the institution of this suit, and it does not appear that he refused payment on that ground.

As the succession had debts it is a fair presumption that the probate sale' Was made to pay them, and we will, for the purposes of this enquiry, consider that the slaves claimed passed into the hands of the defendant free from previous encumbrances, the plaintiff being entitled to be paid out of the proceeds.

Under the late decision of this Gourt in the case of Boguille v. Faillei, 1 An. R. 204, if the mortgage still existed, the plaintiff would have the right to cause the property subject to it to be sold, and to receive the proceeds. C. P. art. 68. C. C. art. 3361.

Here the property was sold ten years ago, to effect the settlement of a succession. The person who had charge of it, and who was the original debtor of the plaintiff, has rendered no account whatever of his administration; although notified of these proceedings, he has made no opposition to them, and no creditor has appeared claiming superior privileges on the proceeds of the property.

The price of the adjudication is traced by the plaintiff into the hands of the defendant, and identified. It is not pretended that any portion of it has been hondfide paid to the representative of the succession, and the defendant stands in the capacity of a stakeholder bound to account either to the plaintiff, orto the succession from which he purchased.

The sum in his hands, with the interest that has accrued upon it, is more than sufficient to pay the plaintiff’s claim, and we consider him entitled to be paid-out oí'it, as he would have been, if the slaves had been sold'underan hypo*fhecai'y action, instituted by him.

It is therefore ordered that the judgment be reversed, and that there be judgment in favor of-the plaintifffor the sum of $1,274 85', with interest at the rate of ten per cent per annum, from-tlie 18th-of May, 1835, until-paid, and oosts in* both courts.*

Kixg, X, being a party to this case, did not sit.

Morgan, for the dofondant, prayed for an amendment of this decree, so as to allow the defendant to surrender the mortgaged property, and thereby, exonerate himself from personal responsibility» Refused.