Lapene v. Meegel

26 La. Ann. 80

• Court: Supreme Court of Louisiana
• Decided: February 15, 1874
• Docket: No. 4989
• Status: Published

Opinion

Morgan, J.

Plaintiffs, judgment creditors of defendant, seized under fieri facias certain sugars and molasses, portion of the crop of 1873, the sugar and molasses being at the time of seizure in defendant’s sugarhouse. The seizure was made on the thirteenth November, 3873. The sugar and molasses were sold, and the contest now is between plaintiffs and third opponents, as to whom the proceeds shall go.

Greve & Wilderman claim a privilege on the proceeds on the ground that they are commission merchants, and that they made the advances and. iurnished the supplies which were necessary to enable the defendant to make the crop.

Nelson and others claim the privilege of laborers who cultivated and took off the crop.

A motion has been made to dismiss the appeal in so far as Nelson and his co-laborers are concerned, because his and their individual -claim does not exceed five hundred dollars. But the aggregate amount of their claims greatly exceeds that sum. The fund, too, to be distributed, exceeds that amount. We think the motion to dismiss should be denied.

Greve & Wilderman allege that defendant’s indebtedness to them was recorded on the seventeenth November, 1873.

The pay roll showing the respective amounts due to Nelson and others was recorded on the fourteenth November, 1873.

The seizure, under plaintiffs’ fieri facias was made, as we have seen on the thirteenth November, 1873.

In the case of White v. Bird, 23 An. 270, where the sugar and molasses made on the plantation of Bird having been seized, and where Thibaut, a commission merchant, filed a third opposition, alleging that his claim for supplies furnished for the use of the plantation was a privileged debt, it was said “ the account of the third opponent has not been recorded. He can not, therefore, assert any privilege so as to affect the rights of the seizing creditors.”

In tlie case of Loeb v. Blum, 25 An. 232, it was held “as between Spor, the consignee, and Loeb & Co., the latter, as seizing creditors, are to be paid first. Assuming that Spor has the privilege which he •claims, but with regard to which we do not consider it necessary to ■express any opinion, still it was not recorded prior to Loeb’s seizure, and can not, therefore, prevail against it.” We think that the re•cording of a privilege too late, is equivalent to Dot recording it all, so far as seizing creditors are concerned, and that recording it after the property upon which alone it can be executed has been seized and taken possession of by the sheriff, and thus put away from the control ■of the defendant, does not affect the seizing creditors’ rights.

Judgment affirmed.