
    No. 10,680.
    Ernest J. Smith vs. Miss Lizzie Lewis.
    Where the plaintiff in an hypothecary action against a third possessor of mortgaged property declares (as his instrument of attack) upon a judgment which by its terms decrees no interest, the blow inflicted is gauged by and corresponds with the weapon used. A judgment of the character mentioned does not carry with it, as such, interest against the third possessor. If interest could under any circumstances be claimed by the holder of such a judgment, it would arise, not from the judgment itself proprio vigore, but from extrinsic facts.
    The recording of a judgment in favor of a ward against his tutrix, which is silent as to any mortgage securing payment of such judgment, and which contains nothing to show the name of the tutrix nor the date of tutorship, is not a legal compliance with the law of registry; and though the judgment may still be alive, the mortgage which secured it originally has ceased to exist if the inscription of the legal mortgage of the ward has perempted.
    APPEAL from the Nineteenth Judicial District Court, Parish of St. Mary. Beattie, J., acting in place of judge recused.
    
      D. Caffery & Son for Plaintiff and Appellee.
    
      Foster <& Mentz for Defendant aDd Appellant.
   The opinion of the court was delivered by

Watkins, J.

This is an hypothecary action in the ordinary form, for the recognition and enforcement of a legal mortgage, resulting from the registry of an abstract of the inventory of the succession of Simeon Smith, father of the plaintiff, on the 12th of December, 1855, against his mother, Arpher M. Smith, who was duly qualified and confirmed natural tutrix, on certain property of the defendant, as a third possessor.

His averment is that upon a final statement of accounts of the tutrix, a judgment of homologation was rendered, showing a balance in petitioner’s favor of $10,750.85, which bears 5 per cent, per annum interest from the rendition of said judgment — it having, in terms, recognized said mortgage from the date above specified.

After admitting as a credit on said judgment “the amount realized from the succession of Mrs. Arpher M. Smith, deceased (his mother), and the amount received from Homer H. Smith, as.third possessor of property covered by his mortgage,” he claims there isa balance due him of $8050, with 5 per cent, per annum interest from 1st of December, 1881, which is secured by the legal mortgage operating on the defendant’s property.

The defendant urged a plea of discussion, and, in the alternative, certain exceptions, and a plea of prescription, and same having been disposed of, she answered in extenso; and on the trial, judgment was rendered in favor of the plaintiff, recognizing his legal mortgage, enforcing same against defendant’s property, as to an undivided one-half interest, and reducing plaintiff’s claim to $585.65, with 5 per cent, per annum interest from the 18th of October, 1884. From that judgment both parties have appealed.

In this court the death of the plaintiff has been suggested and the appeal revived in the name of the dative testamentary executrix of the deceased.

The controversies in this litigation are quite analogous, in many respects, to those agitated and decided in Smith vs. Johnson, 35 An. 943, it being a precisely similar' action, with same plaintiff, and the object of which was the enforcement of the same mortgage, against the defendant Johnson, as a third possessor of a portion of the property affected thereby; but, on examination of the opinion in that case, we find but one question decided that is involved in this case, and that is the peremption of the mortgage for want of timely reinscription.

For accuracy of statement we will quote from that opinion, same having been filed in evidence:

“ The plaintiff, E. J. Smith, was born in 1848. His father, Simeon Smith, died in 1853, and, in the same year, his mother, Mrs. Arpher M. Smith, was confirmed natural tutrix. As required by the Constitution of 1868, and legislation thereunder, the minor’s mortgage was recorded by inscription of the abstract of the inventory of the estate of Simeon Smith, on November 9, 1869. At this date plaintiff was of age.
“In 1872 Mrs. Smith filed her account of tutorship to plaintiff, and on December 2, 1872, judgment was rendered homologating her account, giving judgment in favor of the minor against (her as) tutrix, for the sum of $10,734.85, and decreeing that the ‘tacit or legal mortgage of said ward on the property of his said tutrix be and the same is hereby recognized to have effect from the date of her confirmation as such tutrix.’ The judgment was recorded on August 1, 1873, and reinseribed on August 1,1881, and the judgment was itself revived in February, 1881.
“The original inscription of the minor’s mortgage resulting from the recordation of the abstract of inventory in 1869 was never re-inscribed.”

That statement of facts is strictly applicable to the present case, with the exception of one, which is the reinscription of the abstract of inventory, it appearing from an agreed statement of facts that is appended to the transcript, that such reinseription was made in the book of conventional mortgages in 1881 — a fact not appearing in the Johnson case. And with the further exception that the judgment of homologation now appears to have been duly recorded in book of mortgages on the 17th of December, 1872, instead of on August 1, 1873, as therein stated.

In the brief of the defendant’s counsel “ the substantial defences ” are enumerated, and all others may be considered to have been waived. They may be fairly summarized as follows, viz.:

1. That the judgment homologating the final account of plaintiff’s tutrix awards no interest, and it forms res judicata.

2. That the claim of the plaintiff does not bear interest, because of the usufruct of his mother on the property of the estate of his deceased father, to the extent of the community interest of the deceased.

3. That at the death of plaintiff’s mother — which happened in September, 1879 — his mortgage ranked all others, and that, at the sale of the property of his succession, the whole of the realty inventoried was adjudicated to him at the price of $5850.

4. That, subsequent to this adjudication, when plaintiff threatened his brother, Homer H. Smith, with an hypothecary action against the portion of the mortgaged property he possessed, he received in compromise of said litigation the sum of $5000, and this sum should be credited upon his judgment.

5. That, subsequent to the sale of the property which is herein sought to be rendered, liable to plaintiff’s mortgage, his mother sold (on the 12th of September, 1872) to one H. H. Broad a portion of the mortgaged property for the sum of $3700, and in that act of sale the plaintiff intervened, and waived and renounced his rights of mortgage; therefore, this sum should be credited on his judgment.

6. That in the suit of plaintiff against Johnson, he realized the sum of $4500, in October, 1884, and that sum should be credited on his judgment.

7. That the mortgage in favor of Beverly O. Smith, against plaintiff’s mother as tutrix, is perempted for want of reinscription within the term prescribed by law.

The defendant called in warranty her immediate vendor, Patrick Byrne, and his vendor, G. G. Walker, and demanded an alternative judgment against the former of $400, and against the latter for $600.

I.

The first question to be determined and disposed of is defendant’s plea of res judicata, which is raised on the judgment homologating the final account of the tutrix. That judgment is couched in the following terms, viz.:

It is * * ordered, adjudged and decreed that the said account be homologated and approved in all its parts, and that said Ernest J. Smith do have judgment against and recover from Mrs. Arpher M. Smith, his tutrix, the sum of $10,734.85, and that the costs of these proceedings be borne by said ward.”

This is followed by the paragraph that is quoted from the Johnson case, and the date and signature of the judge follows it.

There is nothing said about interest in the brief statement of accounts which the tutrix furnished to the plaintiff subsequent to his majority. No mention is made of interest in the petition of the tutrix, which accompanied her account when it was filed and homologated.

The contention of defendant’s counsel is, that the judgment homologating the final account of a tutor is a final judgment; it fixes the rights of the parties; it is for a specific sum; a ft. fa. can issue thereon; an appeal can be taken from it; and a judicial mortgage results from its proper registry.” Brief, p. 10.

Therefore, he urges that it is controlled by the same rule of interpretation as ordinary money judgments are.

In Succession of Anderson, 33 An. 581, it is stated that “ the only, serious question involved in this case is one of law, viz.: Whether interest can be collected on a judgment for money, which, by its terms, is silent as to interest;” and on a full and careful consideration of all authorities, from Saul vs. His Creditors, 7 N. S. 437, to Succession of Regan, 12 An. 116, we held that it was a misfortune which might have been repaired before that judgment became final, but which is now past remedy.”

That case was quite recently quoted with approval, and we said: “ The conclusions of the court rested on, and were completely justified by, several previous adjudications enforcing similar views.” Insurance Company vs. Harbor Protection Company, 39 An. 585; Schulhoefer vs. City of New Orleans, 40 An. 512.

If the question at issue here is controlled by the jurisprudence applicable to money judgments, the claim of defendant must be maintained.

In Cochran vs. Violet, 37 An. 221, we examined and dealt with the effect of certain judgments homologating annual accounts of tutorship, and held that, under the terms of R. O. O. 356, such judgments are only “ prima facie evidence of the correctness of the accounts homologated,” and said, “ they are judgments which can not serve as a basis for executory process, or for a seizure and sale. * * *

“They are entitled to the same weight, nothing more, nothing less, as a voluntary acknowledgment of indebtedness made by the tutrix, at the time, as the judgment would be, that is obtained by a creditor in a succession in process of liquidation, when the administrator has declined to recognize the claim. * * *
“The prescription which extinguishes money judgments does not apply to such judgments, as have a conditional existence only.”

Not only so, but we held that judgments homologating such accounts did not affect or interrupt the prescription of four years which runs against a minor in favor of the tutor, in respect to the right of action of the former against the latter, “ respecting the acts of the tutorship.”

We said: “ The prescription runs, whether the tutor has or not, , during the minority, rendered an account. His entire omission does not prevent prescription from running. * * *

“ Under the plain letter of the law, O. P. 998, the plaintiff ought to have sued his tutrix for a settlement within the four years from his obtaining his majority.” R. O. O. (356) 362.

We have quoted from that opinion as a leading case for the purpose of showing fully and clearly the distinction which is taken in the code, as well as in jurisprudence, between judgments which homologate annual accounts of tutorships and those homologating final accounts, “ respecting the acts of the tutorship.” And from that distinction necessarily arises the conclusion that the latter class of judgments is final and conclusive as to the tutor and the emancipated minor. And in case the tutor files no final account, and the emancipated minor allows the utile tempus to pass, without resorting to an action to compel one, his rights and claims are effectually barred. This being the proper construction of the articles of the code relating to the different accounts of tutorship, the conclusion appears to be irresistible that the emancipated minor can assert no claims against his tutor other than such as are recognized in his final account, and established in the judgment homologating it. Such a judgment has the same effect and binding force of any final judgment.

While it is perfectly true “that the sum which appears to be due by the tutor as the balance of his accounts bears interest without judicial demand from the day on which the accounts were closed ” (R. O. O. 360), yet the right to judicially claim interest is unaffected thereby. The use of the plural noun accounts” indicates that an extra-judicial settlement was meant, and that the date on which those accounts are stated and closed is the one from which interest commences to run, andmay be recovered, on proper demand and decree.

But we do not mean to extend this doctrine to judgments simply homologating accounts — even final accounts of tutorship — but where, as in this case, the judgment proceeds beyond a simple homologation, and awards a final and specific money judgment, in favor of an emancipated minor, or one who has attained his majority, against his tutrix, it possesses all the characteristics of other money judgments, and constitutes the absolute measure of liability. If it incorrectly disallowed interest, or failed to allow interest, the only remedy was by new trial, or appeal. The defendant’s plea of res judicata was good and should have been sustained.

II.

Our conclusions in reference to the defendant’s plea of res judicata dispenses us from the consideration of the usufruct of plaintiff’s mother, as exonerating his estate from the payment of interest to him, as a beneficiary heir of his father, Simeon Smith, deceased.

III.

The third, fourth and sixth grounds of defence, being germane to each other, may be taken together and considered, as they appertain to payments made on the plaintiff’s judgment.

(a) In reference to the Johnson suit, it is satisfactorily shown that the plaintiff really collected $3500, and that sum must be applied as credit on his judgment. The judgment’was for the sum of $4500, but during the pendency of a devolutive appeal therefrom, the writ was compromised by the plaintiff accepting $1000 less.

(b) At the probate sale of the property of the succession of Mrs. Arpher M. Smith, the realty was adjudicated to the plaintiff, as purchaser, at the stated price of $5800; one-third in cash and the remainder in one and two years’ time. Subsequently, the plaintiff threatened to proceed against his brother, Homer H. Smith — who was at the time administrator of their mother’s succession — in the enforcement of his legal mortgage on property in his possession, when a transaction and compromise took place between them, whereby the latter assigned to the former the judgment against the tutrix, in favor of his brother, Beverly C. Smith, for exactly the same amount as that of the plaintiff against her; and of which he, Homer H. Smith, was holder, as collateral security for an indebtedness of Beverly C. Smith to him.

In the same transaction, Homer H. Smith agreed to pay, and the plaintiff to receive, the sum of $5000 in full acquittance of his demands, and therefor to release his mortgage on the property of the former.

This consideration was paid to the plaintiff by surrendering to him the two notes which he had theretofore executed in favor of Homer H. Smith, administrator of Mrs. Arpher M. Smith’s succession. The written agreement between the parties states that the judgment of Beverly O. Smith was transferred “ subject to certain credits thereon,” and that the price of $5000, therein stipulated as the consideration that Homer H. Smith was to pay for the release of plaintiff’s mortgage on his property, was “ credited as payments on the above described judgments pro rata, in the proportion that the respective amounts' of said judgments bear to the said sum paid.” Now, it appears from the record, that, on the date on which judgment was rendered in favor of Beverly O. Smith, he was paid by his mother the sum of $5996, thus leaving a balance of $4738.55 due him on his judgment of $10,734.55.

But while this agreement was predicated on the basis of $5000, as the whole price Homer H. Smith was to pay for the release of the plaintiff’s mortgage, yet it is the price of adjudication to the plaintiff of his mother’s succession property, which is the measure of his obligation.

It is manifest that both the $5000 which is stipulated in the agreement, and the $5800, amount of adjudication, can not be allowed as credits on the plaintiff’s judgment.

The former was paid and compensated in the settlement of the latter. '

Now it appears from the transcript that the Beverly C. Smith’s judgment was recorded on the 15th of July, 1873, and never subsequently reinscribed. It is against this legal mortgage that the defendant’s plea of peremption is urged. Beverly Smith was of full age in 1872, when he obtained judgment against his tutrix, and, therefore, it was necessary that his mortgage should have been properly reinscribed within ten years from July 15, 1873. Lemille vs. Thompson, 34 An. 1041; Smith vs. Johnson, 34 An. 943.

It was in full force in 1881, when the transaction betweeñ the plaintiff and H. H. Smith occurred, though it has since become perempted.

But the judgment of plaintiff was recorded prior to that of Beverly Smith, and was, therefore, superior in rank, and entitled to preference and priority in receiving payment from the proceeds of the common debtor’s property; and to it the $5800 should have been applied. Homer H. Smith and the plaintiff could not, by their agreement, otherwise impute those proceeds to the prejudice of the defendant as third possessor.

IV.

Defendant contends that, inasmuch as the plaintiff intervened in an act of sale, made by the tutrix ’on the 12th of September, 1872, of a part of the mortgaged property, and waived and gratuitously renounced his rights of mortgage therein, the price of $3700 must be credited on his judgment.

But plaintiff’s counsel replies that “it is quite certain that there is no credit in favor of the original debtor. Can there be any credit in favor of a third possessor? Can there be one claim against the original debtor and another against the third possessor?” Brief, p. 9.

The identical question raised here was decided adversely to the defendant’s contention, in Powell vs. Hayes, 31 An. 789; although in that case a special mortgage was under consideration, against the enforcement of which discussion is not allowed. In that case the court said:

“Now, the third possessor of mortgaged property is not privy to the contract between the creditor and the original mortgagor. He is not bound for the debt. The creditor has never consented to take him as surety. Without the consent of the creditor no one can become surety of the debtor in a conventional obligation. * * There being no privity between the mortgage creditor and the third possessor, he is under no obligation to preserve his privileges and mortgage against others in order that the third possessor may have subrogation thereto in their entirety. It may be that the third possessor, having an interest in discharging the debt, will, upon payment thereof, be entitled to subrogation to the then existing rights of the mortgage creditor.”

Article 715 of the Code of Practice provides that the creditor With a general mortgage must proceed against the holder of property subject thereto who has most recently acquired, and, in the inverse order of alienation, to the one who acquired most anciently.

Of course, the rights of all purchasers of parts of the mortgaged property are fixed by their respective acts of conveyance. The one who first acquires a portion could not anticipate that another would purchase a part of the mortgaged property. Certainly there is not and could not be any privity between purchasers at different dates. The one making the first purchase of a part leaves it in the power of another to acquire the remainder; and the one who makes the last purchase buys with full knowledge. Each of these dealings are separate and distinct one from the other.

What reason is there why the legal mortgagee can not intervene in the subsequent act, and renounce his right of mortgage without consideration, and not subject himself to the penalty of having to credit his mortgage debt with the amount of the sale, at the instance of antecedent purchaser? What duty or obligation does the mortgagee owe to the antecedent purchaser who buys without his consent or knowledge? There is none that we can conceive of. The reasoning of the court in Powell vs. Hayes seems to be strictly applicable to a legal mortgage. The only difference which can exist between the legal and conventional mortgage in this respect relates to the plea of discussion; and of which the antecedent purchaser is deprived by the mortgagee’s remuneration.

But in this connection it must be observed that under the terms of the Oivil Oode the plea of discussion of the third possessor is limited to “property mortgaged for the same debt, within the possession of the principal debtor.” Article 3403.

It is the provisions of the Code of Practice alone which extend the right of discussion to junior possessors of mortgaged property.

From the fact that the Code of Practice requires of the hypothe- . cary defendant to advance the cost of discussion, it is clear that only a grace is extended to him as a senior possessor, and not an obligation imposed on the mortgage creditor.

But the mortgagee’s renunciation caused the defendant no injury, because the 3410th article of the Revised Civil Code declares that “ the third possessor, who has either discharged the mortgaged debt or relinquished the property mortgaged, or suffered it to be sold under execution, has, according to law, an action in warranty against the principal debtor.'” (Italics ours.)

So if the purchaser — any purchaser — be ousted by reason of the mortgages resting on the property at time of sale, his recourse is against his vendor and warrantor for reimbursement, and not against the mortgagee, with whom he had nor has any contractual or even quasi' contractual relations. And what gives force and significance to the quoted article in this connection is the fact that it is found in the chapter of the title appertaining to mortgages, which treats “ of the effect of mortgages against third possessors and of the hypothecary action.”

We are of opinion that this part of the defendant’s demand is not well grounded and must be rejected.

V.

Deducting from the capital of plaintiff’s judgment the sums allowed as credits thereon, and we have this statement, viz.:

To amount of plaintiff’s judgment.................................................................$10,734 55

Or.

By amount collected on Jolmson judgment under compromise.....$3,500 00

Ry amount proceeds of sale of real estate of Mrs. Smith’s succession to the plaintiff......................................................................$5,800 00 — $9,300 00

Balance due on judgment............................................................. $1,484 55

For this sum the plaintiff is entitled to judgment, and to this amount the judgment must be amended and increased.

It is therefore oidered, adjudged and decreed that the judgment of the lower court be so amended and increased as to award to the plaintiff and appellant the sum of $1484.55, and that all costs be deducted from the proceeds of the sale of the hypothecated property.

It is further adjudged and decreed that the judgment appealed from be, in all other respects, affirmed.

On Rehearing.

Nicholls, O. J.

Both parties applied for a rehearing in this case.

Plaintiff contends there is error in the judgment herein rendered.

1. In not allowing interest on closed accounts of plaintiff’s tutorship from the time the account was closed.

2. In placing the judgment of B. O. Smith behind the judgment of Ernest J. Smith; in not pro-rating the credits on said judgments arising from the sale of the succession property of Mrs. Alpha M. Smith, and in imputing the whole amount of Ernest J. Smith’s bid of $5800 on the real estate of said succession as a credit on his judgment exclusively, when in point of fact B. O. Smith’s judgment- was alive and entitled to share in the proceeds of said sale.

3. In not allowing Homer Smith and E. J. Smith to pro-rate the amounts paid by Homer Smith for his peace in the compromise between him and Ernest Smith as they did — that is, to each judgment pro rata, giving to E. J. Smith’s judgment its share of the credit, and to B. C. Smith’s judgment its share likewise.

Defendant urges, 1st. “That the judgment of plaintiff should be credited with the sum of $4500 instead of the credit of $3500 allowed by the court; the said $4500 being the sum actually received by plaintiff in the execution of his judgment against W. W. Johnson, on the ground that the defendant having the right to force the discussion of the property of Johnson, and having exercised that right, has also the right to force the plaintiff to apply the proceeds of the property to the payment of his judgment; the right of discussion necessarily carrying the right to force the application of the proceeds of the property discussed.”

2. “ That the court erred in not crediting the judgment of plaintiff with the sum of $5000, this being the amount received by plaintiff in a notarial act from H. H. Smith on account of his judgment and which plaintiff in a notarial act before George B. Sheppard declares to have been received on said judgment and specially credits the judgment in said act with said sum.”

3. “The judgment of plaintiff should be credited with the sum of $3750, the amount of plaintiff’s renunciation in the sale from his tutrix to H. H. Broad.”

We have carefully re-examined the record.

The plaintiff, Ernest Smith, and Beverly O. Smith, his brother, were, at the death of their father, minors. Their mother was ap - pointed and qualified as their tutrix. The abstract of inventory in the succession of the father was recorded as required by law on the 9th November, 1869, and reinscribed August 1, 1881.

On November 8, 1869, Beverly Smith obtained a judgment against his tutrix for the sum of $10,743, which was reduced on the day of its rendition, by a partial payment of $5996, to the sum of four thousand seven hundred and thirty eight dollars. The amount of the judgment was in liquidation of the rights of Beverly Smith against his mother as his tutrix, and it was secured at that time by the general mortgage on the tutor’s property. The failure in the judgment to recognize fhat fact did not destroy the actually existing mortgage. This judgment was inscribed on 15th July, 1873.

On the 20th December, 1872, Ernest J. Smith obtained a judgment against his tutrix for the sum of $10,734.85, and recognizing that payment of the same was secured by the minor’s mortgage.

This judgment was recorded August 1, 1873. and reinscribed August 1, 1881.

It was revived 28th February, 1881, and judgment of revival recorded the same day.

On the 11th September, 1871, Mrs. Alpha M. Smith and Mrs. Ellen Hine sold to H. H. Broad certain property for the price of thirty-seven hundred and fifty dollars. On the next day (12th September, 1871) Ernest Smith and Beverly Smith renounced their mortgage on the property so sold.

Mrs. Alpha Smith died September 1, 1879. At the sale of her succession property made on the 5th May, 1880, Ernest Smith purchased property to the amount of $5800, one-third cash and the balance represented by notes payable in one and two years, with 8 per cent, interest from date.

At that date more than ten years had elapsed from the date of the inscription of the abstract of inventory (Nomember 9, 1869) , and it had not at that time been reinscribed; but Beverly Smith’s judgment (which, as we have seen, did not refer to or recognize the minor’s mortgage) was, as such, alive, and its inscription on 15th July, 1873, had not perempted.

It appears that on the 27th May, 1869, Mrs. Alpha M. Smith had sold certain property to another son, Homer H. Smith, on which the mortgages in favor of Ernest and Beverly Smith rested.

The son, on the death of his mother, was appointed administrator of her succession, and in that capacity he had in his possession in 1881 the two notes representing the credit instalments of the purchaser made hy Ernest Smith at the succession sale. Having loaned money, or made advances to his brother, Beverly, to an amount of about $1400, the latter had transferred to him by way of collateral security the judgment which he had obtained, as we have said, against his mother and tutrix. Thus matters stood, when Ernest Smith threatening to proceed by way of an hypothecary action against Homer, as third possessor of the property which he had purchased from the tutrix, an act was passed (27th August, 1881) between the parties in which Homer Smith transferred to Ernest the Beverly Smith judgment which he held as collateral, with the obligation assumed on the part of Ernest to hold and sa ve him (Homer) and his property harmless against all claims which could be urged by Beverly.

Ernest Smith having thus become the holder of the two judgments, the act proceeds to recite that Ernest Smith, claiming a mortgage on the property byjvirtue of the two judgments, declared that “for and in consideration of the sum of $5000, this day to him paid by Homer H. Smith, receipt of which he hereby acknowledges, and which said sum of $5000 is hereby credited as payments on the above described judgments pro rata in the proportion that the respective amounts of said judgments bear to the said sum paid, that he did and does hereby forever abandon, relinquish and declare fully paid, satisfied and extinguished all claims, demands, mortgages, judgments, rights of action, hypothecary rights and all other rights of whatever nature which he may have and hold as the owner and possessor of the said above described judgments bearing upon the above described property, and guaranteeing (as we have above stated) the said Homer H. Smith against harm or eviction on the part of the heirs of Beverly Smith or his assigns from the collateral judgment herein transferred, and the said Homer Smith canceling and surrendering, and delivering the two certain promissory notes, each for the sum of $1988.33 dated, drawn and signed by Ernest J. Smith on the 5th May, 1880, and payable one in one year and the other in two years after date, to the order of H. EL Smith, administrator, and conditioned to bear 8 per cent, per annum from date until paid, and the payment thereof secured by a special mortgage and vendor’s privilege on the property purchased by said Ernest J. Smith, at the succession sale of the property belonging to the estate of Mrs. Alpha M. Smith, as fully described in the deed of said property from said administrator; the said Ernest J. Smith hereby grants a full and final receipt and discharge to said Homer H. Smith for all claims, demands and actions as the holder and owner of said described judgments which he may have against the said Homer H. Smith as administrator of the succession of Mrs. Alpha Smith, resulting from the sale of the property belonging to said succession made on the 5th May, 1880.”

Subsequently to this, Ernest Smith proceeded by an hypothecary action against one Johnson as third possessor of property, subject to his mortgage, and in that action certain property was seized, and on the 30th of August, 1884a sold to a third person for the price of forty-five hundred dollars, which the purchaser paid to the sheriff and the latter to the plaintiff.

The third possessor having taken a devolutive appeal in the premises, the matter was compromised by the plaintiff paying to Johnson $1000 of the purchase price, he actually receiving therefore from the action $3500.

On the 28th November, 1882, the present hypothecary action was instituted against the defendant as third possessor of property claimed to have belonged to Mrs. Alpha Smith during the tutorship, and to be affected by the general mortgage resulting from the tutorship of the plaintiff.

The property was sold by T. D. Hiñe and Mrs. Alpha Smith on August 22, 1862, to John Walker, by John Walker to G. G. Walker September 22, 1871, by G. G. Walker to Patrick Byrne, August 20, 1874, by Patrick Byrne to Miss Lewis (the defendant) March 22, 1880.

In ascertaining the rights of parties we take as the starting or initial date in our investigations the 27th day of August, 1881, that being the date of the act between the plaintiff, Ernest Smith, and his brother Homer, and in dealing with the judgments of Ernest and Beverly Smith against their mother and tutrix we shall not include interest upon either, as by the terms of neither judgment was interest decreed.

Where the plaintiff in an hypothecary action against a third possessor of mortgaged property declares as his instrument of attack upon a judgment which, by its terms, decrees no interest, the blow inflicted is gauged by and corresponds with the weapon used.

A judgment of the character mentioned does not carry with it, as such, interest against the third possessor. If interest could under any circumstances be claimed by the holder of such a judgment it would arise, not from the judgment itself proprio vigoi-e, but from extrinsic facts.

We are not called on to say whether plaintiff in an hypothecary action would have the right as against a third possessor who absolutely denies all liability, makes no tender and forces plaintiff into a protracted litigation, he himself remaining pending the litigation in possession of property bearing fruits, to claim interest on the judgment from judicial demand, not as resulting directly from the judgment but from the refusal of the third possessor to either surrender the property or pay the debt. It may be that under Articles 3453, 2553 of the Oivil Oode, plaintiff might be entitled to interest if under such circumstances he claimed interest.

Returning to a consideration of the situation of parties on the 27th day of August, 1881, it will be seen that on that day Ernest Smith owed as a purchaser at the sale of the property of his mother’s succession the cash portion of that purchase price, nineteen hundred and thirty-three dollars and thirty-three and a third cents, and the amount of his two notes, thirty-eight hundred and sixty-six dollars sixty-six and two-third cents, with interest on this last amount from the 5th May, 1880, to the 27th day of August, 1881. The whole indebtedness at that time, therefore, being six thousand two hundred and five dollars.

Now, at the date of the sale and on the 27th day of August, 1881, Ernest Smith was a judgment creditor to the amount of ten thousand seven hundred and thirty-four dollars, and Beverly Smith was a judgment creditor to the amount of four thousand seven hundred and thirty- eight dollars.

At that date more than ten years had elapsed since the inscription of the abstract of inventory in the matter of the succession of Simeon Smith, the father of the parties; but Beverly Smith had, as we have stated, obtained a judgment against his mother and tutrix, which he (had caused to be recorded on the 15th July, 1873, and if the inscription of that judgment had the effect of preserving the evidence of a general mortgage in favor of Beverly Smith on the property of his tutrix the mortgage had not perempted, but was in full force.

The judgment referred to was as follows:

“ In this matter it appearing to the satisfaction of the court that the tutrix had delivered to her ward, Beverly O. Smith, the full and final account of her tutorship on the 1st September, 1869, with the vouchers in support of said account, the receipt of which was duly acknowledged by said Beverly C. Smith, as per his receipt in the record, and no opposition having been filed to the homologation of said account, and the law and the evidence being in favor of said homologation, it is therefore ordered, adjudged and decreed that said account be homologated and approved in all its parts, and that the said Beverly O. Smith do have judgment against his said tutrix for the sum of ten thousand seven hundred and forty-five dollars, subject to such credits as may have been given by said ward to said tutrix before the rendition of the judgment.”

It will be noticed that the name of the tutrix is not given in the judgment. The judgment is silent as to any mortgage securing payment of the judgment, and there is nothing in it to show the date of the tutorship. So long as the inscription of the abstract of inventory was not perempted, the indefiniteness of this judgment may perhaps have been cured or supplemented by the recorded ab - stract, but when the effect of that registry ceased and the rights of parties quoad inscription had to rest exclusively on the recorded judgments, a very different condition of things arose. We are of the opinion that the recording of this judgment was not a legal compliance with the law of registry, and that • though the judgment may be alive, the mortgage securing it has ceased to exist. This being the case the whole of the price due on the 27th August, 1881, by Ernest Smith (six thousand two hundred and five dollars) resulting from his purchase on the 5th May, 1880, of his mother’s succession, was to be credited on his judgment and extinguished as to that extent. The balance due him on his judgment after the application of these proceeds was four thousand five hundred and twenty nine dollars.

On the 27th August, 1881, the act to which we have referred between Homer Smith and Ernest Smith was passed. In that act both parties recognized and declared a payment of five thousand dollars by Homer Smith to Ernest Smith, and as resulting therefrom the crediting pro rata of the amounts due that day on the two judgments of Ernest and Beverly. What were the amount of the two judgments at that time? Ernest’s judgment had been reduced to four thousand Jive hundred and twenty-nine dollars, whilst Beverly’s remained intact and unpaid at the sum of four thousand seven hundred and thirty-eight dollars. Waiving all objections which might be urged to the application of the five thousand dollars to the two judgments, and giving effect to the agreement between the parties, we have to distribute Jive thousand dollars between the two judgments according to the amount mentioned — in round numbers twenty-five hundred dollars would be credited on each judgment. Deducting that amount from Ernest Smith’s judgment, there would remain a balance due him of two thousand and twenty-nine dollars.

In the enforcement of plaintiff’s claim against Johnson, $3500 were actually realized and paid over to the plaintiff. This payment extinguished entirely plaintiff’s judgment.

Plaintiff very vigorously denies that he has recovered a cent of the $5000 mentioned in the Homer Smith act. It may be that no money passed between the parties, but both considered that Ernest Smith was, through the provisions of that act, benefited to the amount of $5000, and the plaintiff consented to regard the benefit received in the light of a payment to that amount.. He may have acted in error of law and unadvisedly, but we are bound to give effect to his contract.

In connection with the act of 27th August, 1881, the fact must not be overlooked that through it Ernest Smith became the holder with control thereof of the Beverly Smith judgment, a fact to which he evidently attached great importance. We can not undertake to say what would be the original rights and obligations of Homer, Beverly and Ernest Smith inter se should Beverly pay his indebtedness, reclaim his judgment and stand upon his rights. We have to deal with the rights of parties from the position in which they have themselves placed them at the present time.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment heretofore rendered herein be set aside, and it is now ordered, adjudged and decreed that there be judgment in favor of defendant against plaintiff rejecting his demand and dismissing his suit with costs in both courts.

Parlange, J., takes no part.  