
    No. 28.
    Timothy Lacoste v. John R. West et al.
    The builder has a privilege on the building which he may have constructed, but if tho amount is over five hundred dollars, the agreement must be in writing, and registered, to preserve the privilege. C. O. 2746.
    Where property sold under a mortgage brings more than the amount of the mortgage, the builder having a privilege next in rank to the mortgage, is entitled to the overplus.
    A PPEAL from the District Court, Parish of Natchitoches, Chaplin, J.
    
      J. B. Tucker, for plaintiff.
    
      J. M, Thomason and J. II. Cunningham., for defendants.
   Labauve, J.

On the 8th October, 1860, E. E. Eitzgerald executed his note for $500, in favor of J. B. West, and to secure the payment thereof, contracted a special mortgage in favor of said payee of said note, upon a certain lot of ground described in the record. On the 6th of October, 1865, the said John B. West obtained an order of seizure and sale against said lot. The plaintiff, alleging that he had a privilege of the builder on a house erected upon said lot by one Meloin, for $516 85, with eight per cent, per annum interest, from the 4th of August, 1861, obtained an injunction upon West and the sheriff, ordering the sheriff to retain in his hands, subject to the further order of the Court, the proceeds of sale of the building.

This alleged privilege of the plaintiff and opponent is based upon tho following note:

“ Natchitoches, February 4th, 1861.

“ Six months after date I promise to pay to the order of W. C. Meloin, for building house, the sum of five hundred and sixteen dollars and eighty-five cents, with eight per cent, interest per annum from maturity; value received.

(Signed) E. E. Eitzgerald.”

The plaintiff, having become the holder and owner of said note, on tho 11th June, 1862, presented to the District Judge, at Chambers a petition praying for a judgment against the maker of said note, with the privilege of builder, and that said house be seized and sold to pay^the judgment. The defendant in that suit accepted service of the petition, and confessed judgment as prayed for, and both parties agreed that the Judge - should try the case, and render judgment in Chambers; the judgment was accordingly rendered on the 11th June, 1862, decreeing the then defendant to pay said sum, and allowing the privilege on the house.

We consider that there is but one question submitted to our decision, and it is one purely of law ; it is whether the plaintiff, has a privilege preferable to the mortgage of J. R. West. The undertaker has a privilege on the building which he may have constructed. C. C. Art. 2743. But if the amount be above $500, the agreement must be in writing, and registered, to preserve the privilege. O. C. Art. 2746. 4 A. 121. 5 A. 333.

In this case there was no agreement in writing registered. The judgment rendered in favor of T. Lacoste, and allowing and recognizing his privilege, is res inter alios acta, and not binding on West. 12 An. 521. We deem it unnecessary to pass on any other question; the alleged privilege of the plaintiff cannot prevail. , •

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and avoided, and that tho:provisional injunction be dissolved and the suit dismissed, and that plaintiff and appellee pay cost in both courts.

On Rehearing.

Labauve, J.

In this case a rehearing was granted to the plaintiff and appellee, upon the question whether he is not entitled to the residue Of the proceeds after paying defendant’s mortgage debt.

As regards the seized debtor, the plaintiff has a privilege and mortgage upon the property seized, but the defendant’s mortgage is preferable, "and must be paid first, together with the cost of seizure and sale. We believe that justice entitles the plaintiff to the residue.

It is therefore ordered and decreed, that our former judgment be • amended, as follows: It is further ordered and decreed, that after paying the defendant’s mortgage debt and cost in the seizure and sale, the sheriff do pay to the plaintiff, the residue of the proceeds in dispute, and that as amended, our former decision remain affirmed, the said plaintiff and appellee to pay the cost of the injunction in both courts.

On Rehearing.

Ilsley, J.

A rehearing in this case having been granted, because the' judgment was prematurely rendered, as the defendánt had not the legal delay to file his brief. We have reexamined our first decree, and the grounds relied upon to reverse it, and we see no reason why our first judgment should be disturbed.

It is therefore ordered, adjudged and decreed, that the juclgn^ejvt last rendered remain undisturbed,  