
    
      NOLTE & AL vs. THEIR CREDITORS.
    Appeal from the court of the first district
    Material men frt work-SfbjXF'un-derlaker of a building, have no privilege buthraay°araii themselves of it.
    This claim u not postment’ofiX
    Neither of them acquires a preference over the other by a Seizure.
   Martin, J.

delivered the opinion of the # cour( From the decree of homologation of ° the tableau of distribution, several creditors ¾ _ , have appealed.

The first is, Miller. The district judge was of opinion he had waived his privilege, and dis-it: he claims asa material-man, and as having paid workmen $4696 21.

1st, The first objection to his demand, is, the waiver of his privilege. The evidence of this waiver results from a writing of the 9th of February, 1826, by which Miller acknowledged that the lien he obtained by the assignment of J ® Heynolds, the undertaker of the building, applied only toa sum of $1535 14, to be paid, in the last instance, after all the other claims have been satisfied, and that the insolvents were entitled to a priority of record for $6000.

If the sum of $1535 was not to be paid until all other claims are satisfied, all these claims are privileged against it, and it has no privilege; the district court, therefore, correctly decided the privilege was waived.

As to the other items of this creditor’s claim ? which are all subsequent to this writing, the waiver cannot extend.

2d. It is next objected, that material men and workmen, claiming a privilege for more than $500, must record their titles. Civil Code 274. We think the code here requires the record of the contract, on which the undertaker's claim arises; art. 2743. ’Tis he alone has a privilege; the material men and workmen whom he has employed, have no privilege of their own in the building; they are only permitted to avail themselves, pro tanto, of his privilege.

3d. It is further objected, that the underi®-kers have not completed the building; and the last payment of both contracts were not de-mandable till the building was completed.— Experts have viewed the building to ascertain the facts, and are of opinion, that what remains still to be done, is of the value of $915. The contract was for above $38,000; and it is not alleged that any damage has occurred. The deficiency, not exceeding 2 1-2 per cent, is so minute a matter, that all the syndics are entitled to is the retention of the sum. Art. 1920.

4th. The syndics urged that they were compelled, in order to have the building finished, to make greater advances than were at first contemplated; the undertaker not being able to go on without them; and that, therefore, these advances beyond what was stipulated for, are no infraction of the rights of material men and workmen, to be paid out of the deferred instalment; because without this the undertaker could not have proceeded, and the last in-stalment would never have become due.

The record shews no proof of this necessity ; it is merely alleged. The law, however, has secured to material men and workmen a fight to a fund formed by the contract; and this right cannot be affected by any act ofbotji parties, or either of them-

5th. It is farther objected, that at the foot J the supplemental contract, the undertaker knowledged the receipt of 20,56(1 dollars on this contract, and that of the 6th of August-) which is all that by both contracts, was payable before the completion of the building; and the last or supplemental contract speaks of payment to be made before the completion of the work; that, therefore, the parties must have understood that more had been paid on the original contract than had been stipulated for: this conclusion being necessary to give some effect to the clause which relates to payments to be made on the second; and that Miller, who intervened in the second contract, as the undertaker’s surety, cannot hold that the sum thus acknowledged to have been received ¡eft nothing to be paid before the completion of the building.

While the parties admit that the money acknowledged to have been received, was paid on both contracts, we cannot conclude that nothing was paid on one of them, and when we seek to find how much was paid on either, we have no clue to direct; and if the sum cover all that was to be paid on both, we must conclude the acknowledged payment was so giade,

It is true, this leaves the clause in the last onlract relating to payments to he made there- . . :uut. before the completion of the building, 1 inoperative. But to give it effect we cannot disregard the positive assertion of the parties of past facts, and without any legitimate rule ascertain what was paid on either contract, and come to the conclusion that more was paid than ought to have been.

6th. The syndics urge that the obligation of their insolvents to pay more than they engaged to pay, because they made some payments too soon, is in the nature of a penal obligation which does not bind syndics.

A creditor, whose debt has been incautiously paid to a person, not authorised to receive it, may still demand it from his debtor: and we cannot see how, in case of insolvency, the debt could not be demanded from the syndics* the illegal payment could not avail the debtor, and it cannot his syndics.

7th. Miller claims a privilege above all the creditors because he first seized. The subrogation of the material men and workmen, to the claim of the undertaker, exists before the seizure ; from the code speaking of the subrogation after having spoken of the seizure, w$ cannot mistake the cause for the effect; the *,t/ subrogation gives the right to and is the of the seizure. All material men and workmen are subrogated, and neither can by a previous seizure destroy the rights of the other.

Parker is another appellant. His claim is supported by a judgment against the undertaker and the syndics, and corroborated by evidence below. He furnished materials and has a privilege himself

Cotton’s heirs are appellants also—they were refused a privilege, which was claimed on the ground that the payment of a sum of money of theirs, in the hands of the insolvents, who had collected it for them, was enjoined; that thus the insolvent became judiciary sequestra-tors or depositaries, and that against such the law gives a privilege. C. Code, 546, art, 26.

It would require much consideration to in? duce us to say that the service of an injunction, so locks the property of the party, as to prevent the free alienation of it. Garnishees are in the same situation; but we think the case demands no opinion on this head.

On the dissolution of the injunction, the in*, solvents were as completely in the possession of the money, as agents of the heirs, as if the ^ormer bad not been enjoined from paying it to the latter. There was no necessity, indeed no utility in an actual delivery over of the J J money from the insolvents, in the capacity of the party sued with the injunction, to the same persons, as that of agents or the heirs. If the latter suffered their money to sleep in the in* solvent’s hands, they did so at their peril.

The dissolution of the injunction, left it, to every possible intent and purpose, as it was at the service of the injunction.

These appellants cannot therefore complain ef the decision of the judge a quo.

We are also to examine such claims against -the insolvents as are contested by the appellants, but previously we must enquire into that of one of the creditors, Lerond, who has made himself an appellee, and prayed that the deed may be amended in his favor, viz: Loro; d.

His claim is founded on a judgment and proof of his work on the building, he is therefore entitled to a privilege.

Withcr’s claim is opposed by the appellants. It rests on a notarial act, by which the undertaker transferred him a claim against the insolvents to secure payment for timber furnished for their building. The objection is. that the assignment makes no proof against the creditors; but evidence of the supply has . introduced. Febrero says, that when the wn-ting, subscribed by the insolvents, is strengthened by adminículos, or proof, destroying the presumption of fraud, it is evidence. Part. 2,6, 3, ch. 2 s. n. 1*2 Martin, 165.

It is objected the assignment was made civ tiempo inhábil and could not give a preference. The privilege of preference does notarise from the assignment, but from the creation of the debt which the assignment was intended to secure.

Tattel’s claim is also objected to, and a priority claimed over him because he made no seizure as others did. This point has been disposed of in examining Miller’s pretentions.

Duralde’s claim is opposed but no evidence is adduced against it., and it was fully made out by proof

Beckman’s claim, which is also objected to arises from his endorsement raid the subsequent payment of a note of the undertaker's to Barron & Co. in payment of slates employed in the building; as a surety for the undertaker, he was bound to pay the amount of the Jiote, and doing so, paid for the slates. Baron & Co. were privileged creditors, being material men.

It is objected they had no privilege, as they took the note inpayment, and their claim for the slates was novated. Of this we see no evidence, and we are not allowed to presume it. C. Code, 2196.

The claim of the Parfaite Union Lodge, does not appear to have been opposed and is on the tableau.

The claims of Gurley and Guillotf, and Per-rault and Pascal, cannot be iistinguishcd from other material men or workmen, and must be paid in concurrence with these.

So must the claim of Beckman, unless proof should shew it to be for the completion of work left unfinished by the undertaker.

The judge below erred in recognising any preference under the undertaker’s assignment. He had been paid every thing he could claim before the completion of the building, and therefore could give no preference, the law having forbidden anticipated payments.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, with directions to modify the tableau according to the principles herein established.

-for the plaintiffs,-for the de-(fendanta  