
    Deneufbourg v. Didion, Romer et al.
    Where mortgage property is sold at the instance of a creditor, a previous mortgage creditor is, entitled tobe paid, by preference, out of the proceeds, unless the seizing creditor prove that the defendant has other property of sufficient value, to satisfy the claim of the prior mortgagee.
    APPEAL from the Second District Court of New Orleans, Lea, J.
    
      Robert Preaux, for plaintiff.'
    
      Miles Taylor, for Caffm.
    
   By the court :

Peeston, J.

This case differs from that of Young v. Municipality No. One, 5 Ann. 736, only in this, that in the former case the defendants had sufficient property to satisfy the claims of the opposing creditors, while, in the present case, the defendants are insolvent, and the property seized and sold under the plaintiff’s mortgage, is the only asset out of which the previous judicial mortgages existing upon it can be satisfied. Under the dispositions of articles 301 and 403 of the Code of Practice, the court ordered the previous judicial mortgages to be paid out of the funds in the hands of the sheriff, and allowed the seizing creditor whatever surplus might remain.

The plaintiff prosecutes this appeal, but we are unable to perceive upon what ground he expects a reversal of the judgment.

It may be true that the note upon which he obtained judgment, was originally given as part payment of the price of the land sold by the sheriff; but the note bears date in 1840, and the rank of the vendor’s privilege had been lost for want of reinscription within ten years, when the sheriff’s sale took place on the 18th October, 1851.

Judgment affirmed, with costs.  