
    No. 6588.
    Succession of Jean Salvant. On Opposition to Account.
    Where two joint owners of property mortgaged it to a third party, and one of them buys the other’s undivided half, and afterwards pays the mortgage debt to avert a threatened sale and is subrogated to the mortgagee’s rights, the mortgage debt is not extinguished by confusion.
    Appeal from the Parish' Court of Jefferson. Hyman, J.
    
      M’ Caleb for the succession. Sambola & Ducros for Soulant Appellant. Elliott for Opponents.
    In June, 1876, the administrator of Jean Salvant filed Ms final account, classifying a claim of Mrs. Ettle as secured by mortgage on the Pearl plantation, which had already been recognized as such on a provisional tableau that had been homologated. Joseph and Charles. Getzinger, the opponents, had been classed as ordinary creditors on the provisional tableau.
    The Pearl plantation had been owned jointly by Jean Salvant and S. Soulant, both of whom mortgaged it to Mrs. Ettle to secure a debt of $1,360. Afterwards Salvant sold his half of the plantation to Soulant, a part of the purchase price being three notes for $1,500, which they stipulated were not to be paid until after the payment and erasure of the Ettle mortgage. Mrs. Ettle obtained judgment on her mortgage debt, and was about to force the sale of the plantation, when Soulant paid it, and was subrogated to her rights. Salvant died, and the Getzingers opposed the payment of the Ettle mortgage debt.
   De Blanc, J.

Let us presume that a judgment had been obtained on said notes, the plantation seized and sold under execution issued from that judgment. Mrs. Ettle, to the extent of her judgment, would have been entitled — by preference to opponents — to the proceeds of the sale of the mortgaged property. Soulant was not bound to pay said notes, as long as the mortgage affected the property, and that mortgage, together with privileges superior in rank to opponents’ claims, have absorbed the proceeds of the sale of that property.

For non-payment of taxes the Pearl plantation was returned by the collector as forfeited.

It was, on the 24th of April, 1876, redeemed by the administrator of Salvant’s succession.

It was, after the redemption, sold subject to the mortgages and privilege thereon existing, and the proceeds of the sale were not sufficient to satisfy the claims, which — under the decree homologating the provisional account — were to be paid by preference to opponents. It matters not in whose hands Mrs. Ettle’s judgment had passed. In rank, it was superior to the claims of Charles and Joseph Getzinger, who admit themselves that, on the provisional account, they were classed as ordinary creditors, and Mrs. Ettle and Forsyth as creditors with mortgage.

Their opposition should have been dismissed.

Decreed accordingly.  