
    
      DORFEUILLE’S MINORS vs. DUPLESSIS ET AL.
    
    Eastern District,
    
      June 1831.
    APPEAL PROM THE COURT OP THE FIRST DISTRICT.
    The syndics of an insolvent cannot release a mortgage existing on property sold by the insolvent previous to his failure, even to disencumber the properly so as to receive the price from the purchaser. Their powers only extend to the discharge of existing liens on property surrendered by the insolvents.
    where syndics release a mortgage existing on property Sold before the surrender by the insolvent, receive tb e price and place it on the tableau to the credit of the mortgage creditors, who are minors but represented by their under tutor, they still have their recourse on the mortgage property, because they were not cognizant to the fact of the mortgage being released.
    The judgment of homologation should cover the whole ground on which the minors claim is resisted, as well that of the release of the mortgage as the payment of the price received for the mortgaged premises, before it can have the effect of res judicata.
    
    an^solvéiftTcan-gageelexTsfin“°on property sold by viouTtohisfaüure even to disencum-t,er the property the price from "the tends to the discharge of existing liens on property surrendered hytho jnsoivent.
    
      The facts are fully stated in the opinion of the court.
    
      Seghers for the appellants.
    
      Moreau and Canon for the appellees.
   Porter, J.

delivered the opinion of the court.

The plaintiffs seek to enforce a mortgage which they had on their father’s property, on land now in the possession of the defendants.

The premises were once owned by their father, who, about the year 1820, became insolvent, and called a meeting of his creditors. Some years previous to his failure, he had sold the premises to one Guesnon, and Guesnon not paying for the property at the time specified in the contract, an order of seizure and sale was taken out, and the premises sold. At the sale the defendants became the purchasers, and the debt owed by them was transferred by the father of the plaintiffs, the insolvent, to his creditors.

. The syndics, demanded payment, and the defendants refused to make itj unless the mortgage which existed on the property in favour of the minors, who are now plaintiffs, was discharged. The syndics gave the release required, and re-cejvecj the money. This money they carried on the tableau of distribution. No opposition was made to the receipt of the money by the other creditors, and the minors, represented by their undevtutor, made none. The money was subse-quentlv paid to their representative.

syndics release a mortgage existing on propeity sold before the surrender by the t^pricean^place ** accredit6 of the mortgage cro-ditors, who are minors but repre-undef tutor, they stlUhaye their recourse on the mortgage proper-were not cogni-afmort^age^he-inS released,

, „ , , . , . ,. , The right of the plaintiffs to recover, depends on the tion of two questions, to which the parties, by agreement, have limited the case, waiving all other questions the record might present. The first is, whether the syndics had aright to release the mortgage.

The act of 1817 gives them the authority to grant a dis-i r r • ,• , . , i ,, charge or hens existing on any property surrendered by the insolvent. This is to effectuate a sale. But in this instance, ’ the sale having been made before the insolvency, the right of “ . the piamtilrs to enforce their mortgage on the property m the hands of the purchaser, was perfect, and could not be affected by the failure, without an express provision of law to that effect. None such exists; and though it would be • i 1,11 , ,,,,,, convenient there should be, the power would be liable to considerable abuse. The property, in many instances, might be worth morethan if-was sold for, and a power to release r the mortgage would deprive the creditor of a great proportion oí his security, if he were compelled to take the money in place of exercising his right on the thing. Such was the case here. The land had been sold by the insolvent several years before, for $1000; — when sold at sheriff’s sale, to enforce the payment of the purchase money, it brought upwards of $2000. The difference between these two sums was lost to the minors, by the syndics releasing the mortgage.

The second, and rather more difficult question, is, whether the failure on the part of the minors to object to the tablean of distribution, and subsequent receipt of the money, does not prevent them from now having recourse on the land. If knowledge of the release given by the syndics was brought home to their representative, then before the court, it is possible it might; but it appeal’s this was a matter carried on between the syndics and purchaser, in which they took no part, and, for aught that is shewn on record, were not even 1 ... i • aware or. 1 he appropriating the money to them, m the ta-jjjeaUj gave their representative no information of the fact; for in virtue of their mortgage on the tutor’s estate, they had a right b° Paid, h* preference to other creditors. The judgment of homologation should cover the whole ground on ,7,, . , . , _ which the minors claim is rested, or it cannot have the of-r , r? • 7 • , OÍ T6S JlldlCdtCl.

The judgment should01covl-atthe whole ground on which the minors’ claim is resisted, as well that of the release of the paymemT of the price for the mortgaged premises before it can have fudierda. °f ,CS

We therefore think the plaintiffs have a right to recover; and the next inquiry is, how much. Their claim is made up . , . . . , „ . , oftwo items, the amount inherited from their mother, $3161 68: and $900 for their share of the acquets and gains made during the marriage. The evidence satisfies us there were no gains, and that the whole amount due the plaintiffs is tlie sum first mentioned; from which must be deducted $960, paid by the syndics, which will leave a balance due of $2108 68.

This balance the defendants contend must be still further reduced in the sum of $710, objects purchased at the sale of the insolvent’s estate, on account of the minors, and carried into the tableau of distribution as so much to their debit.— This item we think should be allowed. It was confirmed by the judgment of the court homologating the tableau, and as the minors were parties to the action and duly represented, the decree has the force of res judicata, and cannot be collaterally examined and set aside in this suit. — 5 N. S. 165. This sum of $710 taken from $2108 68, leaves $1398 68, with interest at five per centum from 13th January, 1821, until paid.

It is therefore ordered, adjudged and decreed, that the plaintiffs do recover of the defendants the sum of thirteen hundred and ninety-eight dollars and sixty-eight cents, with interest from the 13th of January, 1821, until paid, at five per centum, unless within ten days after the notification of this judgment they give up the mortgaged premises to the plaintiffs; and if they do, it is then ordered and decreed that the said premises be seized and sold, to satisfy the above sum of thirteen hundred and ninety-eight dollars and sixty-eight cents, with interest at five per centum from the 13th January, 1821, until paid, and costs of suit.  