
    
      ABAT & AL vs. NOLTE & AL'S SYNDICS.
    
    Appeal from the court of the first district
    Receipt of ft draft in payment^ extinguishes vendor^ pn* lege on thing 6pid.
   Martin, J.

delivered the opinion of the , . - court. The parties were before us at the last 1 May term of this court, vol. 5, 697. The de fendants having since filed a tableau of distribution of the proceeds of the sale of the lot soldi by the plaintiffs to the insolvents, they opposed^ its homologation, claiming payment of ttogj price of the sa le, out of these proceeds by pré" ference to all other creditors, and on the r&f jection of this claim they appealed. < ¾

The case was submitted on the testimony; onjfile in the former case. This testimony had. been taken suLject to all legal objections.

In the notarial act of salé, the plaintiffs, who were the vendors, acknowledged the receipt . . _ . of the pnce, before the execution of the act.— The testimony of witnesses was taken to shew that the price had not been received before the execution of the act, but that the vendees gave the vendors a bill of exchange therefor soon after the execution of the act. Had therefore the counsel of the syndics insisted on it, this testimony could not have been received in the present case, because fraud is not alleged as it was in the former, and the testimony is offered against the contents of the act which is forbidden by the former code, 310 art. 242, and by the new, 2234

Admitting the fact however, that payment was not made at the execution of the deed, the case shews that a bill of exchange was after-wards received in payment.

Millaudon, one of the plaintiffs’ witnesses’ deposes he knew the draft was given" inpayment for the lot, and the plaintiffs themselves in their original petition, in the former case, (the record of which is in evidence in the present,) expressly state they were prevailed on to receive the draft in payment of the lot. It appears to us from the documents and evidence, that the price of the sale was to be paid a draft, that trusting in the honor of the vendees, the vendors acknowledged the receipt °f the price in the act óf sale, and shortly af* ter received the draft. After this they could not have any privilege; for the payment of the price was consummated according to the intention of the parties, and the form of the act shows the vendors had no idea of retaining a privilege.

Denis tor the plaintiffs, Peirce Sf Eustis for the defendants.

But if even the original intention of the parties had not been that payment should be made by a draft, by receiving the draft in payment the vendors extinguished their original claim. See the case Rama & al vs. Howe, vol. 2, 144.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.  