delivered the opinion of. the court.
The plaintiff seeks to recover from the maker and endorser, the amount of two promissory notes, given- in part payment of town lots, purchased by the defendant, A. Hodge, at the probate sale of J. Gravier, The execution of the notes is admitted, but the defendants refuse to pay them, and pray for the rescission of the sale, on the ground that the plaintiff has not caused to be raised certain general mortgages existing upon the lots at the time of the adjudication, agreeably to his express stipulation to that effect.
The District Court gave judgment in favor of the plaintiff, for the sum claimed, with a stay of execution, until the plaintiff shall have filed in the suit a certificate of the recorder of mortgages, attesting the erasure and cancelling of the general mortgages, affecting the lots adjudicaled to the defendant, A. Hodge. The plaintiff appealed.
The plaintiff bound himself, in the sale to the defendant, to cause the general mortgages then existing upon the lots to be cancelled and erased from the book of the recorder of mortgages, on or before rendering the account of his curatorship, and before obtaining his discharge from the court.
This undertaking of the plaintiff has not been complied with, although he has rendered his accounts of his administration ; but he says that the erasure has become unnecessary, because all the mortgages had been'recorded more than ten years, at the inception of this suit, and had ceased to have any effect upon the property sold,. agreeably to article 3333 of the Louisiana Code. The last inscription shown by the certificate of the recorder of mortgages was made in *104May, 1827, and the citation in this case was served in March, 1838, more than ten years had elapsed, and those mortgages, being judicial mortgages, had ceased to have any effect, for want of a new inscription, when this action was commenced; but there is no doubt that they had alt been previously extinguished by the probate sale, as stated by the plaintiff in the sale to the defendants, and that the promise to have them erased from the books of the recorder, was vain, and without object, and may be considered as creating no obligation. The erasure by the act of the mortgagee would not more effectually have extinguished them than a probate sale, or the want of a new inscription for more than ten years; and when judicial or conventional mortgages are thus extinguished, they should be noted by the recorder, and no longer be included in his certificates.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed ; and proceeding to give such judgment as ought to have been given, it is further ordered and adjudged, that the plaintiff, in his capacity as curator of the estate of Jean Gravier, deceased, recover of Andrew Hodge and William L. Hodge in solido, fifteen hundred and twenty-eight dollars seventy-five cents, with interest on fifteen hundred and eighteen dollars seventy-five cents, from the 18th January, 1838, until paid, and costs in both courts.