Thiac v. Jumonville ( 1880 )

The opinion of the court was delivered by

DeBlanc, J.

In 1877, on the 16th of April, Mr. Yives, acting as the agent of his wife, went before a notary, and — in his own words, “ granted unto Raphael Beltran a special lien and general privilege ‘and mortgage upon the whole of the sugar and molasses ” to be made- — during that year — on a plantation which she had leased, to secure the, re-imbursement of promised advances, the amount of which is fixed — in the act— at precisely eight thousand dollars — and, in 1877, on the 27th of April, a similar privilege “ was granted ” te J. C. Thiac for additional advances, which were not to exceed the sum of three thousand dollars.

Those contracts were recorded on the very day they were entered into — the last one — that of the 27th of April — contains the following «lause: “ It is distinctly understood that this act is — in no manner — to interfere with or impair a prior act- of mortgage granted by Edward Yives, as agent of his wife, on the 16th of April 1877, in favor of Raphael Beltran.”

Under these contracts, Beltran advanced more, Thiac less than they had respectively promised — and, in December 1877, they sued out writs -of sequestration, and caused to be seized — Thiac on the 20th, and Bel-tran on the 29th of said month — -the sugar and molasses subject to their privilege.

Defendant released on bond the sequestered effects, sent them out of the jurisdiction in which they had been seized, and disposed of them. She — thereafter—confessed judgment in favor of Beltran and Thiac, with recognition of the privilege mentioned in the acts of the 16th and 27th of April.

In May 1878 — after the release on bond — the cases of the two creditors against Mrs. Yives, were cumulated on motion of Beltran’s counsel, *' in order to fix the parties’ rights and rank their privileges.” This was ■done without objection. In May 1879, the counsel who had applied for and obtained the order of cumulation, moved to strike it out, on grounds which they must have abandoned, as — in their brief — they merely ask an affirmance of the judgment appealed from.

The district judge held that Beltran’s privilege on the sequestered effects, is superior in rank to that of Thiac, because his contract was the first recorded. Beltran’s counsel contend that — as between Mrs. Vivos and that client — -there existed a privilege beyond that stipulated in the act of the 16th of April, one which — in their opinion — secures, not only the promised advances, but also those — whatever may be their amount — which were needed to carry on defendant’s plantation during the year 1877, and that the priority conceded by Thiac extends to all the advances made by Beltran, whether stipulated or not.

By the recordation of the act of the 16th of April, Beltran and Mrs. Vives notified the world that he would advance to her the sum of eight thousand dollars — nothing more — and she, that — to secure those specified advances — her crop was subject to a privilege in his favor — and in his turn — Beltran was notified, by the recordation of the act of the 27th of April, that — beyond the sum of eight thousand dollars — his claim for any advance made to Mrs. Vives, would — from that date — be outranked by that of Thiac. 30 A. 1332.

When, and before Mrs. Vives entered into a contract with Beltran, she had — in his hands — the sum of $1159 91, which — it is clear — formed no part of the amount which he was to advance, and that sum was properly imputed — by the creditor — to the satisfaction of the general indebtedness of Mrs. Vives, which far exceeds the stipulated loan. He was not bound to impute it to the satisfaction of exclusively the restricted claim of $8000, which — -it was expressly agreed — was to be paid out of the proceeds of the sale of the sugar and molasses, and which— otherwise — would have been partly paid, before the date of the contract from which it sprung.

According to their contracts, the two creditors were to receive— out of the proceeds of the sale of sugar and molasses — Beltran eight, Thiac three thousand dollars ; and — as they have not yet received, out of those proceeds — a proportion equal to the respective advances actually made by them, they are still entitled, under those contracts, and in the order hereafter fixed, to a balance which, added to what they have realized from that source, shall cover the amounts of the effected advances.

Beltran has been paid — -out of funds which — as between him and Thiac — were properly applied to the partial satisfaction of his claim of.•.. $8,000 00 the sum of. 6,464 81f

Leaving due a balance of..... i.$1,545 18¿ which — by reason of at least the priority conceded by Thiac — must be paid by preference to any balance due the latter, out of any money that may be recovered by the enforcement of the lien acknowledged in their favor, on the, 16th, and 27th of April.

As to Thiac, he advanced to Mrs. Vives. @1,594 69 Received, out of the proceeds of the sale of a portion of the

sugar and molasses.'. 1,140 00

And, under the contract of the 27th of April, is yet entitled to @454 69

which — as between him and Beltran — he can claim, out of the proceeds of any effects subject to the common privilege, but after satisfaction of the balance herein fixed as due to his co-creditor.

Thiac’s counsel argues that he had, against Mrs. Vivos, two separate debts, now merged into one judgment, which — in its very nature— became non-collectible, and not subject to execution, except as an-entirety, and that — inasmuch as what he received, was paid on that judgment, that payment must be imputed, first to the interest, and then proportionally to the principal of the two debts.

In the judgment which he obtained against Mrs. Vives, the two debts are carefully and separately designated, one as being an ordinary, the other a privileged debt — and, of the two, that-which — at the date of' the payment — Mrs. Vives was most interested in discharging was the-last mentioned. C. ,0. 2166 (2162); Gilbert, Codos annotés, p. 556, No. 8'.

On the last pages of the brief of Beltran’s counsel, they say: “ A mere glance at Thiac’s account will show that it is almost entirely made up of due-bills, orders, etc., given by Mrs. Vives, to her hands, and bought or paid by him.” On the third page of that brief, we find the declaration that “ so far as the facts are concerned, or that Beltran, or Thiac furnished the amounts claimed by them, there is no dispute.”' Besides, by referring to the motion which is the basis of this litigation, no doubt can be entertained that its sole object was to fix the rank of their otherwise uncontested privileges.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is amended, and Raphael Beltran’s privilege on the sequestered property recognized as superior to that of Jean Charles Thiac, to the extent of fifteen hundred and forty-five dollars, eighteen and one third cents, with legal interest thereon from the 29th of December 1877 ; and — beyond that amount — that Jean Charles Thiac be paid — by preference to Raphael Beltran, and out of any proceeds of the sequestered effects, the sum of four hundred and fifty-four dollars and sixty-nine cents, with legal interest from the 20th of December* 1877. The costs of the appeal to be paid by Raphael Beltran.

It is further ordered, adjudged and decreed that — as thus amended — said judgment is affirmed.