New Orleans National Bank v. Warehouse

• Decision Date: 01 May 1891
• Docket Number: 10,747
• Citation: 43 La.Ann. 814,9 So. 442
• Court: Louisiana Supreme Court
• Parties: NEW ORLEANS NATIONAL BANK v. EAGLE COTTON WAREHOUSE AND COMPRESS COMPANY. EUGENE SONIAT, SYNDIC OF J. B. LALLANDE, THIRD OPPONENT

9 So. 442

43 La.Ann. 814

NEW ORLEANS NATIONAL BANK v. EAGLE COTTON WAREHOUSE AND COMPRESS COMPANY. EUGENE SONIAT, SYNDIC OF J. B. LALLANDE, THIRD OPPONENT

No. 10,747

Supreme Court of Louisiana

May 1, 1891

APPEAL from the Civil District Court for the Parish of Orleans King, J.

E Howard McCaleb, for Plaintiff and Appellee.

W. S Benedict, for Third Opponent, Appellant.

OPINION

WATKINS J.

The controversy presented by the syndic's appeal is his right of priority over plaintiff, as seizing creditor, and the New Orleans Canal and Banking Company, in the distribution of the proceeds of the sale of certain hypothecated property of the defendant, said proceeds being insufficient to pay the demands of all.

The following is a summary of the facts, as they appear of record, viz.:

On the 28th of July, 1886, the widow and heirs of Viscount Morand sold to J. B. Lallande several lots of ground situated in the First district of the city of New Orleans, for the price of $ 11,000, of which $ 3666.66 1/3 was paid in cash, and for the balance said purchaser executed three notes of $ 2444.44 4/9 each, to his own order, and endorsed and payable at one, two, and three years after date, and secured by vendor's lien and mortgage.

On the 21st of May, 1889, Lallande sold said property to the defendant for the price of $ 40,000, of which $ 2000 was paid in cash; and for the residue said purchaser executed its five several promissory notes, payable to its own order, and endorsed for $ 6133.30 each, one at one year, two at two years, and two at three years after their date, and secured by vendor's lien and mortgage, and assumed the payment and discharge of Lallande's three notes, above described, and released him therefrom.

The three notes of Lallande passed into the possession of Henry A. Horine, and he placed them with the American National Bank; and of the five notes of defendant, two were by Lallande pledged to the plaintiff, and three likewise pledged to the Canal Bank.

On the maturity of the one first falling due, plaintiff purchased the mortgage in executory proceedings against the defendant, and the property was adjudicated at the price of $ 36,000 in cash, for the account of the plaintiff in execution and the Canal Bank.

On the day of sale, Horine filed a third opposition, claiming the right to have his three notes paid out of the proceeds by preference; and Soniat, syndic, filed a like opposition, alleging his right to be paid by preference, also, the amount he claims to have been paid by Lallande in discharge of the interest on the notes held by Horine; and other amounts he claims to have himself paid in insurance premiums on policies issued on the property mortgaged, and the taxes assessed against it while under the mortgage.

The demand of Horine was sustained and acquiesced in by the plaintiff; but that of the syndic was rejected, and he has appealed.

The question for decision is, whether the District Court erred in refusing to hold that the insolvent estate of Lallande became legally subrogated to the superior rights and privileges of the persons to whom he and his syndic had made payments; and, therefore, in refusing to decree the syndic...