
    No. 8535.
    V. Bergeron, Administrator, vs. Hubert Patin.
    The exchange of the notes originally given for the price of an engine and machinery for another note, in which the same consideration is recited, created no novation of the debt.
    APPEAL from the Fifteenth Judicial District Court, Parish of Pointe Coupée. Yoist, J.
    
      Selves & Parlange, for Plaintiff and Appellee:
    1. Novation is never presumed. O. C. 2190.
    2. And where it is conceded that one new note is given for the aggregate amount of two other notes for same consideration and interest, by same maker to same payee, solely because the two notes were old and worn out, novation is disproved.
    
      3. The recording at the moitgage office of the parish in which the purchaser resides of a promissory note given hy him for the price of an engine and machinery for sugar making, and so expressing it on its face, is sufficient to preserve the vendor’s privilege against the purchaser and third persons. Carlin vs. Gordey, 32 An. 1285.
    4. And if without material injury to the house iu which it is placed, such property can ho moved therefrom, the vendor may seize and sell same separately from the land on which that house stands. Ibid.
    
      Haralson & Claiborne, for Defendant and Appellant:
    Where the vendor of an engine and machinery, who has accepted the purchaser’s two notes for the credit portion of the price, subsequently surrenders these notes to the purchaser and accepts in place of them another note with different terms of payment, and thereafter brings suit for the price of the machinery and engine, alleging that the new note was given through error and the old notes surrendered or destroyed through error and without authority, lie cau not recover judgment for the price in such suit if he fail to prove the error and waut of authority alleged; hut lie will be required to proceed by a new suit on the new note which had been substituted for the old ones.
    Plaintiff', in the progress of his suit, must meet the general issue aud prove up his claim. See Durham vs. Williams, 32 Au. p. 962.
    A creditor who on receiving a new note surrenders the first, novates his debt. See 1st Rob. p 527; 2 An. 765; 18 An. 697; 24 An. 610..
    The privilege of che former credit is not transferred to the one which is substituted in ills place, unless by special agreement. See Civil Code, 2195.
   Tlie opinion of the Court was delivered by

Fenner, J.

This is an action for the unpaid price of an engine and machinery sold to defendant, and for recognition of the vendor’s privilege thereon.

It appears that the sale was for $2,000, of which $500 were paid in cash, and the balance was originally evidenced hy two notes of $750 each, reciting- their consideration to he as part of the price “d’une machine a vapeur et nioulin a sucre.”

Subsequently, these two notes were exchanged for single note of $1,500, which also recited its consideration to be “ en paiement d’une machine a vapeur, moulin a, sucre.”

We think such au exchange operated no novation of the debt. Novation is never presumed, C. C. 2190; and, in this case, it is conclusively negatived hy the recitation in the last note, which shows that it, like the two notes originally taken, was simply the evidence of the debt due for the price. That price remains unpaid, and is secured by the vendor’s privilege.

The evidence satisfies us that the engine and mill may he removed from the house in which they have been placed, without such material injury as to prevent their being- removed and sold in satisfaction of the vendor’s privilege. The case falls fully within the doctrine of Carlin vs. Gordey, 32 A. 1285.

Judgment affirmed at appellant’s cost.  