WESTERN DIST. October, 1840, vs. STRATOR. obscure wording of article 3241, to wit: "That the neglect of recording the privilege can be taken advantage of only by the mortgage creditors." It clearly appears, on the contrary, TAYLOR et al. from the above provisions of law, that the plaintiffs have not CRAIN'S ADMINItaken the necessary steps to secure to themselves a privilege against their employer; and still less against the creditors of the estate, who must be viewed in the light of third persons. But even had the plaintiffs brought themselves strictly within the provisions of the law, the record discloses a circumstance which we apprehend must be equally fatal to their pretensions; one of the houses on which they have done repairs to the amount of eight hundred and sixty-one dollars and thirty-one cents, appears, from their own showing, to have been sold by the disceased some time before his death, to James A. Thom and Robert W. Dawson. The funds on which plaintiffs are endeavoring to enforce their lien, do not proceed from a sale made by the administrator of property belonging to the estate, and it is on these alone, that the creditors can exercise the rights and privileges which they had on the property left by the deceased. When a judicial sale is made of property subject to privileges or mortgages, it passes free of any incumbrance into the possession of the The price of property subject purchaser; and the proceeds remain in the hands of the to a privilege, curator or administrator, subject to the rights which the sold before the creditors had on the property itself. In this case, had the owner, when plaintiffs' privilege ever existed, it must have continued to exist administrator, is free of the privion the property in the hands of the vendees, and any balance lege, and must of price paid to the administrator must be distributed among the ordinary creditors of the estate. decease of the collected by his be distributed among the ordinary creditors. Privileged claims for work and materials on a house are pre six But the appellants have contended that their account being for materials furnished, and for work and labor done, they should be permitted to claim separately each amount, scribed by the lapse of and that, each being under five hundred dollars, the formalities months, if they of an act and its registery were unnecessary. This would are not better the situation of plaintiffs, for both claims being under five hundred dollars, they would then be barred by the prescription of six months, established by article 2747 of the Louisiana Code, which must be reckoned from the day under five hundred dollars. WESTERN DIST. When the work was completed, and the record shows that the October, 1840. claim was set up two years after the work was done. GRIFFING'S AD- It is, therefore, ordered, that the judgment of the Court CALDWELL ET AL. of Probates be affirmed, with costs. GRIFFING'S ADMINISTRATRIX vs. CALDWELL ET AL. APPEAL FROM THE COURT OF THE SEVENTH DISTRICT, FOR the parisH OF The plaintiff cannot have a case in this court continued for a certiorari, as to the principal debtor, and proceed to final judgment against the sureties, who are his co-defendants. Sureties have an interest that judgment be first rendered against the principal debtor, or at least simultaneously with them. This is an action against the principal and two sureties on a promissory note. The plaintiff sues as executrix of Lorenzo A. Griffing, deceased. She alleges that the defendant, Caldwell, is principal, and that Brigham & Downes are sureties, and prays judgment against all of them, in solido. There was final judgment by default against Caldwell; the other two defendants severed in their defence. They, however, admitted their suretyship, and averred that the plaintiff had delayed to sue the principal debtor, and also, that they were entitled to the benefit of discussion, the debtor having sufficient property to satisfy the debt. Judgment was rendered against the defendants and they all appealed. There appeared to be an omission in making out the record, by omitting to copy into it the judgment by default taken against Caldwell, the principal debtor, and which was made final. M'Guire, for the appellee, moved for a certiorari, to correct WESTErn Dist the record, by inserting the judgment by default, and that October, 1840. the judgment against the two sureties be amended and ren- GRIFFING'S dered absolute against them, disallowing their plea of discus- MINISTRATRIX sion, as they had failed to furnish the funds required by law CALDWELL ET AL. to entitle them to the benefit of that plea. Copley and Downes, contra. Martin J., delivered the opinion of the court. This is an action against the principal and his sureties on a promissory note. He failed to answer, and judgment by default was made final against him. The sureties severed in their defence, and pleaded that the plaintiff had indulged the principal with time, and also claim the benefit of discussion. There was judgment against them, and both principal and sureties appealed. The appellee's counsel on a suggestion of diminution of record, which disabled her from proceeding against the principal, obtained a certiorari, and moved that the case proceed to judgment against the sureties. This was resisted, on the ground that a plaintiff who has made several persons defendants, cannot, without dismissing the suit as to one of them, proceed against the rest. The appellee's counsel has admitted this, but has contended that the cause being continued as to the principal, by the allowance of the certiorari, nothing ought to prevent him from proceeding against the sureties. AD Sureties have an interest that first rendered The sureties have an interest that judgment should be rendered against the principal and them simultaneously, for if the case be first tried against them, and judgment afterwards be given for the principal, it will be difficult to avail them- judgment be selves of the discharge of the latter. In the present case the against the principal debtor, or judgment provides, that it be first executed against the prin- at least simultacipal, which cannot be done unless there be judgment neously against him in this court. If, as the appellee requires, this conditional judgment be reversed, and an absolute one be given against the sureties, they will still have an interest, them. with BRANDER ET AL. vs. FERRIDAY, BEN- WESTERN DIST. that judgment be rendered against their principal at the same October, 1840. time, for as soon as they will have paid the debt, they will be subrogated to the rights of the plaintiff, against the principal debtor, and have the right to take out execution against him. This, in our opinion, entitled the sureties to a continuance, for it would be unjust, that without any neglect or laches on their part, they should lose those advantages because of the continuance as to the principal on the motion, and for the benefit of the plaintiff. The case must, therefore, be continued, as to all the defendants. BRANDER ET AL. vs. FERRIDAY, BENNETT & CO. APPEAL FROM THE COURT OF THE NINTH DISTRICT, FOR THE PARISH OF Evidence of the general opinion of the insolvency of a mortgagor, in his neighborhood, to the knowledge of the mortgagees receiving a mortgage in fraud of creditors, is a fact which may be shown to create the presumption of knowledge in the mortgagees. Presumptive evidence ought not to be rejected, because, alone, it does not operate conviction. A party cannot offer all his evidence simultaneously, and was not to be controlled in the choice of that which he chooses to offer first. A party to the suit, who is interested, cannot be called as a witness. A witness will not be allowed to testify that he is ignorant of the law, in relation to a certain transaction, as his want of knowledge is immaterial, and he is bound to know the law. This is an action in which the plaintiffs sue, as judgment creditors of one Walter Byrnes, to annul a mortgage given by him, as is alleged in insolvent circumstances, to the defendants, in fraud of other creditors. vs. NETT & co. The plaintiffs show that they obtained judgment against WESTERN Dist. October, 1840. Byrnes, the 12th April, 1839, for thirteen thousand seven hundred and forty-six dollars, which was duly recorded 14th BRANDER et al. June following. That on the 10th day of November, 1838, FERRIDAY, BENByrnes, being notoriously insolvent and in failing circumstances, executed a mortgage to the commercial firm of Shipp, Ferriday & Co., to secure them in the sum of eleven thousand five hundred and five dollars, which he acknowledged he owed to William Ferriday and Henry L. Bennett, surviving partners of the said firm, &c.; the mortgage was given on some valuable tracts of land and several slaves. The plaintiff alleges that this mortgage was executed at a time when the mortgagor was notoriously insolvent, to the knowledge of the mortgagees, and with the intention of obtaining and giving an unjust preference to them over other creditors, and is fraudulent and illegal as to them, and ought to be annulled. The plaintiffs further show, that all the foregoing mortgaged property was sold by the sheriff, on the 9th April, 1839, to one Lewis A. Collier, of the said parish of Concordia, as the last and highest bidder, on a credit of twelve months, for the price of seventy-one thousand dollars, who has given his bonds for the several sums due upon the several writs of execution, amounting to about twenty-four thousand dollars, leaving a balance of about forty-seven thousand dollars, retained by the purchaser to pay pre-existing mortgages, and among others, that of the defendants. And they further show, that by said apes Byrnes was left without any property whatever, or any other means of paying his debts. They pray that Collier be made a party, and that said mortgage be cancelled and annulled, as made in fraud of creditors; and that their claim be paid out of the proceeds of said property so sold, to the exclusion of the defendants. The defendants deny generally, and specially the allegations in the petition. They admit the execution of the mortgage, and aver that it was given in pursuance of an agreement made with Byrnes, twelve months before the date of its execution. |