
    C. Tibben v. S. D. Gratia & Co., et al.
    Where a party is guilty of laches by not urging his claim in due time and place, he cannot complain, in this court.
    
      IX. PPEAL from the Second District Court of New Orleans, Morgan, J.
    
      G. Dufour for plaintiff and apjaellant. L. Costera G. Legardeur for defendants.
   HoweiiL, J.

Plaintiff alleges that he is a mortgage creditor of the succession of Francois Gras, deceased, which was settled as an insolvent estate; that the property subject to his mortgage was sold, in due course of administration, and the mortgage cancelled by order of the court, and the proceeds applied to mortgages inferior to his, in favor of defendants. He therefore claims from them the amount which he alleges is secured by his mortgage.

Defendants set up the general issue and the plea of res judicata!

It appears that plaintiff was a party to the rule taken by the executor to cancel the mortgages on the property of the succession; that a tableau of distribution was duly advertised and homologated, after disposing of numerous oppositions, that this tableau was brought to the special attention of plaintiff by the attorney of the executor, who -says that he requested plaintiff to examine it, in order to ascertain whether he (plaintiff) had any other claims besides those which he held as agent, and for which he was placed thereon; and that he replied, “It was all right. ”

We think that under this state of facts, the plaintiff has not -brought himself within the application of Article 1176 C. 0., and that he is precluded from any recourse upon the fund distributed in said tableau, and that defendants cannot be compelled to return to him any funds received by them by virtue of said judgment of homologation. He was evidently guilty of laches in not urging his claim in due time. See 5 A. 38.

Judgment affirmed, with costs.  