E. Reusch & Co. v. Keenan

On Application for Rehearing.

Bermudez, O. J.

While it is avowed that the note for $1390 ought not have participated in the distribution of the proceeds of sale, it is pressed that the court erred in not allowing to the note of $3250 its share of the same.

This pretension is based on the averment that the payment Of this note was secured by vendor’s privilege and special mortgage, on June 14, 1884, on five of the ten lots, and that the act was recorded on June 16, 1884.

This act is not in the transcript. The certificate of mortgage, to which reference is made, does not identify the note and supply the omission to establish either of those two things.

When suit, via exeautiva, was brought, to enforce payment of this note and of the $1390 note, no allusion whatever was made to the vendor’s privilege and to the mortgage on the five lots.

The two notes were sued on as two simple ordinary mortgage notes, secured on the ten lots, and the act of mortgage, showing the fact, was attached to the petition, ending with a certificate from the Recorder of Mortgages, showing its registry, not on the 16th, but on the 17th of June, 1884.

If this note was secured, as is now urged, the fact ought to have been alleged and proved and prayer made that the privilege' be enforced against the five lots, by selling them separately, but nothing of the hind was done. No averment was made, and the ten lots were sold in block, in globo.

Surely, if the owners of the note had the rights presently claimed, things have been put by them in such a condition that it is impossible to discriminate what portions of the proceeds should accrue to them.

They have no right to complain.

Rehearing refused.