
    HODGE vs. WHITALL.
    Eastern Dist.
    
      June, 1840.
    ON A REHEARING.
    The court cannot inquire into the terms and conditions on which property mortgaged by special privilege, should be sold, which has been given up | to the creditors by a concordat.
    If the property mortgaged and ordered to be sold to satisfy the judgment I is not sufficient, the defendant not being released by the concordat, will bel personally bound to pay the balance due on the judgment, if there be any.
    
      Strawbridge, for the defendant,
    applied for and obtained a| rehearing in this case. He insisted that the judgment was! erroneous in construing the concordat as only extending to the! parties in their partnership capacity, and in relation to part-1 nership claims. If the enunciative terms only are to be! attended to, and allowed to control, the interpretation given! by the court would probably be correct; but the rule of inter-! pretation is, that “ where a clause is clear and explicit, and leads to no absurd consequences,” we are not to control them by other clauses. Louisiana Code, 1940, 1943.
    
      2. The clause of release of the defendant individually, and from all claims and demands whatsoever, is clear and not the least doubtful in its terms. Upon an examination of the whole act, there is abundant proof that the parties to the concordat did contract with each other individually. Independent of the strong terms expressed to that effect in the clause of release, two other circumstances show it: Whitall transfers his private property ; and is this done in his individual or his partnership character? could the other partner have transferred it, had he been the acting and liquidating partner as Whitall was ? Surely not. The very lot of ground for-which these notes were given, he gave up and put in his schedule. ' The other partner, or the partnership, could have no control of this property. The title was in his name.
    3. According to another clause in the concordat, “ regard is to be had to priority of privileges and mortgages, where they exist.” How could Hodge claim a mortgage, except as the creditor of Whitall, individually. ■ He had no mortgage or privilege as against the firm.
    
    
      4. Of the intention of Whitall, it seems to me impossible to doubt. That he intended to deliver the whole of his private property to pay an endorsement of his firm, whilst he left himself exposed personally, as drawer of the same note, which he might be sued for the next day ; when he had given to his creditor all his means of paying, thus effecting nothing but a release of his co-partner, is an act so completely opposed to those great principles of action, self-love and self-interest, as to be incredible. It is a construction leaning much more to the “absurd consequences” of article 1940, than that which is contended for.
    5 Lastly, did Mr. Hodge ever look at these words : I give “ (as well to the said Joseph E. Whitall) as to the members of the said firm individually and jointly, an acquittance of all claims, debts, and demands whatever;” if he did, he must have seen they were large enough to include WhitalFs individual debts, according to the plainest meaning of its (erms. But nemo presumitur donare, we are told. In answer, we ask no presumption ; we stand on the plain sense, the letter of the contract. It is the plaintiff who is fishing for presumptions to limit and restrict his agreement, and if they were doubtful, our code enacts that in such case it is to be interpreted against him who obligates himself. Louisiana Code, 1952. The plaintiff is here obligating himself to release Mr. Whitall. “ The seller is bound to explain himself clearly respecting his obligations ; any obscure or ambiguous clause is construed against him. Louisiana Code, 2449.
    The court cannot inquire into the terms and conditions on which property mortgaged by special privilege, should be sold, which has been given up | to the creditors by a concordat.
    mortgaged and soicf'*to satisfy the ^deYfYdant not being releasdahwiilbeperpay^the^baiance due on the judgany.5
   Simon, J.,

delivered the opinion of the court.

In this case, a rehearing having been granted, we have again considered, with the utmost attention, the grounds on which the defendant relies to maintain his defence, and we have been unable to discover any reason why the former decision of this court should be disturbed.

We cannot inquire into the question relative to the terms under which the property, mortgaged by special privilege in üv^or of the plaintiff, should be sold; nor can we indicate jtl what manner the sale thereof should be executed, in satis- . . faction or the judgment appealed from ; because, the creditors are not before us, and it would be improper on our Palt 10 §'ve any opinion on (he legal effect and consequences of the acts, in which the plaintiff appears to have consented to abide by the terms to be fixed afterwards by a meeting of the creditors. Whether the plaintiff has waived his right to force the sale of the property for cash or not, is a question in which all the creditors are necessarily interested. It su®ces f°r us> to say that the judgment, which we have affirmed, ordering that it shall be paid by privilege on the proceeds of the sale of the property, under whatever terms, anc* 'n whatever manner the properly be sold, the defendant, not having been released as by him contended, will be personally bound to pay the balance due on the judgment, if any there be, after the amount of said proceeds shall have been ascertained and duly imputed. This is all that could be decided upon between the parties to this suit, and the judgment appealed from could not provide any further.

It is, therefore, ordered, that the judgment of this court remain undisturbed.  