
    No. 8446.
    McIlvaine & Spiegel vs. Mrs. M. C. Legaré and L. Godchaux.
    Registry of a note for “ balance due on thiee boileis furnished Use Souvenir Plantation,” is sufficient to preserve the vendor’s lieu.
    The time when the vendor’s lieu was recorded is no matter to a subsequent purchaser, if it was recorded before the subsequent purchase.
    A mortgage creditor who buys the mortgaged pi operty at private sale, and whose mortgage is, therefore, extinguished by coufusion, canuot, as creditor, contest existing liens on the property.
    This Court will take judicial notice of the fact that the common law is established in the other States of the Union, and that under that system, the vendor’s privilege upon movables is not recognized; hut the case is j emanded for further evidence, to show where the contract of sale was passed.
    APPEAL from the Twenty-second Judicial District Court, Parish of Ascension. Gheevers, J.
    
      JE. W. Pugh, for Plaintiffs and Appellees :
    1. Privileges are valid against third persons from the date of registry. 28 An. 365 ; 32 An. 315; 29 An. 416; 37 An. 246, 275 ; C. C. 3273; 33 An, 967.
    2. Yendor’s lien and privilege on boilers sold for the use of plantation is not destroyed by the boilers being attached to plantation. The registry of note in mortgage book reciting consideration, is good and sufficient. 28 An. 749 ; 32 An. 1287; C. C. 3277, 3348, § 4.
    3. Penalties are not to be implied or extended. 9 An. 252; 32 An. 661; 13 An. 376; 10 An. 346; 26 An. 30; 28 An. 554.
    4. Mortgage is extinguished by mortgagee becoming owner of property mortgaged, and by buying the property mortgaged at private sale he takes the property eum onere and subject to all the privileges and mortgages existing against it. C. C. 3411, §2 ; 33 An. 463; 32 An. 810; 30 An. 144; 28 An. 95; C. C.2217; particularly 32 An. 610; 5 An. 497; 31 An. 394, 791, 512; 26 An. 194; 7 if. S. 471; 6 R. 216; 26 An. 36,' 13, 24, 187, 487: 10 An. 23 j 23 An. 800 ; 7 An. 349.
    5. Defendant having in his answer set out specially and particularly his reasons why the plaintiff’s’privilege cannot he enforced against him, is restricted to the objections thus made. His general denial is controlled by his special defense, and it is too late in his brief to raise new points. Knickerbocker Life Ins. Co. vs. Schneider, Sup. Ct. of U. S., Oct. Term, 1879 ; 12 An. 739; Hen. 1151, Ho. 19 ; 19 An. 488, 495; 12 An. 13; 14 An. 777; 4 An. 107; 28 An. 456 ; 26 An. 575; 15 An. 222 ; 23 An. 55; 11 An. 407 ; 3 L. 219; Brief no part of pleadings, 12 An. 833; Object of pleadings is notice, 22 An. 479, 365; 3 An. 373 ; 2 An. 958.
    6. Defendant having in his answer admitted possession of the boilers on which plaintiffs claim a lien and privilege, he cannot be heard now to deny this fact. His admission deprived plaintiffs from proving the number of boilers sold, and was an admission on. his part that he had in his possession the identical boilers described by plaintiff in his petition. 5 H. S. 636; Hen. 1150, Ho. 6 ; 30 An. 674; 7 L. 265; 3 R. 201; 5 R. 486.
    7. Foreign laws must be proved as facts. In default of snob proof, they will be considered the same as our OWN. i H. S. 522-528; 3 H. S 149; 4H.S.419; 5 H. S. 176-254; 3L.358; 12 L. 465-594 ; 16 L. 557: 2 R. 1; 4 R. 140; 6 R. 29-104; 9 R. 151-293 ; 5 An. 63; 8 An. 124 ; 14 An. 391-821; 17 An. 73 ; 27 An. 96 ; 24 An. 222; Wharton on Rvid. YI. § 288; 11 An. 269; 28 An. 58.
    8. Heither will the courts of one State take judicial notice of the laws of any other State; and this upon the theory that the separate States are, as respects their political relations to each other, essentially foreign countries, whose laws must be proven as facts. • 30 Ala. 382; 39 Ala. 468; 62 Ala. 443; 10 Ark. 169; 27 Ga. 243; 14 Ind. 424; 12 Ind. 112; 46 Mo. 243; 32 H. Y. 102-104 ; 23 Tex. 639.
    
      9. “If tlie courts of one State recognize the statute of another State as law in such State, this recognition maybe permanently maintained by the courts of the former State, so far as is . necessary to determine the validity of the acts done in uniformity with such laws.” Wharton Ev. §289; 21 An. 597: 1 L. 541-255: 4 An. 129.
    10. The courts of this State have never recognized that the common law is the basis of'the jurisprudence of Ohio. 17 An. 228.
    11. In the cases cited by defend ant the sale was affirmatively and conclusively shown to have been completed and consummated iu another State.; whereas, in tlie case at bar it is shown that the i>roperty was delivered in Louisiana, that the note sued on was dated and given in Louisiana, and defendant’s theory is based on one single isolated 1‘act, viz: that plaintiffs are residents of the State of Ohio. 8 N. S. 34; 11 M. 23, 730 ; 7 An- 774 • C. P. 13; 10 An. 728.
    12. Lien and privilege part of the remedy, and governed by the 1 iw of the place whore tlie suit is brought. 13 An. 503; 24 An. 25; 32 An. 191; Hon. p. 7r9, No. 5, -
    
      II. N. Sims, for Defendant and Appellant.:
    Plaintiffs have utterly failed to establish a vendor’s privilege, because:
    1. The evidence in relation to the alleged sale of the boilers does not show what number was embraced in the contract, or that noy price was ever fixed and agreed upon.
    A fixed price is essential to a sale. 0. 0. Arts. 2104, 2465; 6 La. 346; 1 La. 383; 2 Rob. 523 ; 6 , Rob. 450; 11 An. 708.
    2. Plaintiifb compose a commercial partnership, domiciliated and doing business at Cincinnati, in the State of Ohio, since 1861. According to their own statements, no vendor’s privilege has ever existed on the boilers in their favor, not evon as between them and Mrs. Legaré.
    The vendor’s privilege upon movables, as recognized in our Code, is unknown to the common law. 8 Mart. 135; 2 An. 335, 984; C. C. Art. 10 ; 16 An. 158; 25 An. 232.
    Privileges are siricti juris; they cannot be extended by implication or analogy,* they are never allowed but when expressly granted by law, and then only by virtue of an exact compliance with the legal requisites essential to their creation and existence. Privilegia sunt strictissirnce interpretationis. C. G. 3185, 3312; Hennen 1238, No. 3, and cases noted; Succession of Cox, 32 An. 1035.
    As against third persons, they must be conclusively established. 10 An. 429; 13 An. 352.
    This Court will take> judicial notice that the vendor’s privilege on movables is unknown to the oommon law, and that the common law forms the basis of the jurisprudence of Ohio. 2 An. 335; 16 An. 158; 8 Mart. 135; 2 An 9i?4.
    The claim of plaintiffs was never recorded so as to produce any legal effect. The pretended registry in July, 1878, of the note purporting to have been signed by J. C. Legaré, as agent for Mrs. Legaré, on the 5th of January, 1*78, and to have been given for “ balance of payment dne on three boilei s furnished the Souvenir Plantation in lt77,” could produce no legal effect whatsoever. 32 An. 1035.
    The words, “furnished the Souvenir Plantation in 1«77,’’ were evidently inserted subsequent to the execution of the note — January 5, 1878 — and probably, as id may be reasonably inferred from the testimony, at the time of its delivery to tlie Recorder on the 19t i of J uly, 1878. R. 55.
    The note does not prove a sale, and its registry could not, therefore, support a vendor’s privilege.
    Godchaux, atthistime, held mortgages against the property to the amount of nearly forty thousand dollars.» He bought it from Mrs. Legaré in March, 1880; the debts which he assumed to pay as part of the consideration of the sale are specifically set fmtli and mentioned in the act of salo. He did not assume to pay any debt which might be due by Mrs. Legaré to plaintiffs.
    He took the property subject only to those encumbrances which legally affected it. The claim of the plaintiffs did not so affect it, and neither Godchaux nor the property is liable for its payment.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs claim a personal jndgment against Mrs. Legaré, and a recognition of a vendor’s lien on certain property’ now in the possession of L. Godcliaux, under purchase from the first named defendant.

Godcliaux bought the Souvenir Plantation from Mrs. Legaré by a private sale. At the date of his purchase, as appears from the mortgage certificate recited in the act, the claim' sued on stood recorded in the shape of the following note :

“ Souvenir Plantation, Jan. 5, 1878.
One year after date, I promise to pay to Messrs. Mcllvaine & Spiegel, of Cincinnati, Ohio, the sum of one thousand one hundred and seventy-five dollars, eight per cent, interest from date till paid. The above amount is the balance of the payment due on three boilers furnished the Souvenir Plantation in 1877.
[Signed] M. C. Legaré,
per J. Cecil Legaré.”

The case will be sufficiently understood from a statement and disposition of the various legal points raised.

1. Defendant claims that the above note is not sufficient evidence of a price due, to support a registry of a vendor’s privilege. We think there is nothing in this objection. “ Balance due on three boilers furnished the Souvenir Plantation,” would convey the idea to any reader that it meant balance of price due for boilers sold.

2. Plaintiff urges that Godcliaux has recognized this privilege and bound himself to satisfy it out of the property, under the terms of his purchase from Mrs. Legaré, in which he stipulated as follows : “ That the purchaser, as a further consideration, * * * without making himself personally liable or assuming to pay the same, further than herein agreed upon, takes the property subject to all the encumbrances recited in said mortgage certificate, and which ley ally affect the herein conveyed property and appurtenances.”

Our conviction is clear that Godcliaux is only bound by the encumbrances which “ ley ally affect” the property., and is not estopped from disputing the validity of any of them.

3. We think the fact that the privilege was only recorded a year and a half after the sale from which it sprung, is one which does not concern Godcliaux. Privileges are valid against third persons from the date of record. C. C. 3273.

This privilege was recorded anterior to Godchaux’s purchase, which was all that was necessary as to him, since he is before us solely in the capacity of purchaser. Recordation on the day of the contract, under C. C. 3274, is only essential to secure a preference over mortgages then existing. Gay vs. Bovard, 27 An. 290 ; Id. 246, 275 ; 28 An. 365 ; 32 An. 315.

Whatever mortgages Godchaux may have held at the date of the contract, were unquestionably extinguished by confusion when he became the owner of the property by purchase at private and non-judicial sale. Murphy vs. Factors, 33 An. 463.

He is no longer a mortgage creditor, and has, therefore, no right to dispute the validity of plaintiffs’ lien, which was duly recorded at the date of his purchase, and binding on him as such purchaser.

4. We consider the sale of the boilers to Mrs. Legaré sufficiently proved; but we must say that the loans contractus is not established with sufficient certainty to enable us to recognize and enforce the vendor’s lien on the evidence before us.

Plaintiffs are residents of the State of Ohio and made the boilers there on the order of the agent of Mrs. Legaré.

We consider it well settled that this Court will take judicial notice of the well known fact that the common law forms the basis of the jurisprudence of our sister States of this Union, and that, under that system, the vendor’s privilege upon movables is not recognized. Copley vs. Stanford, 2 An. 335 ; Whiston vs. Stodder, 8 M. 984 ; Colt vs. O’Callaghan, 2 An. 984.

It is absolutely necessary, in order to sustain plaintiffs’ claim, that they should establish, either that the contract of sale was actually consummated in Louisiana, or that the common law has been so modified by Statute in Ohio as to establish a privilege in favor of the vendor of ■ movables, similar to that granted under our system. Nor do we think that defendant has forfeited his right to urge this defense by his urging of other special defenses in his pleadings.

As the evidence, however, is inconclusive on the question of where the sale was consummated, and as it appears that the objection norv under consideration was not suggested in the pleadings, we think the purposes of justice will be subserved by remanding this case for the taking of further testimony on this point.

It. is, therefore, ordered, adjudged and decreed, that in so far as the judgment appealed from gives personal judgment against Mrs. M. C. Legaré, the same be now affirmed; and that, in other respects, the same be annulled, avoided and reversed, and that this cause bo remanded to the District Court, for the purposes herein indicated, to be there proceeded with according to law and to the views herein expressed ; the costs of this appeal to be borne by the plaintiffs and appellees, and those of the lower court to abide the final judgment in the case.

Rehearing refused.  