On Rehearing.
BREAUX, O. J.The two appeals (17,712 and IS,155) were consolidated after rehearing was granted in the latter case.
This was done in accordance with agreement of counsel.
In the first judgment this court held,' as had the jury in the district court, that the present suit by the plaintiff was premature and unnecessary.
The plea of plaintiff for the rehearing, which this court granted, was that defendant had pleaded the general issue, and had not interposed an exception of prematurity. The case was reargued on the rehearing both orally and in briefs.
Rehearing was granted. The question is now before us for decision.
The facts being that defendant did not plead prematurity of plaintiff’s suit, never made the least objection on that score, there was no good ground for holding that the suit was premature.
The claim of plaintiff was for advances to the defendant on his crop. If there were reasons for pleading prematurity, it was never alleged. The fact is that on the face of the papers the claim was due. In any case, the prematurity urged in this ease falls within the ordinary rule that such a plea must be filed in limine.
If the suit was premature, why was prematurity not alleged. The plea cannot be supplied. It certainly cannot avail in any case without the plea pleaded.
After issue joined, prematurity is not an available plea.
Plaintiff’s claim:
The amount claimed is due. It is not contested. Plaintiff is entitled to the amount as between plaintiff and defendant.
We have clearly stated, in substance, that the prematurity urged in argument cannot be of any avail in defense. Judgment will, therefore, be entered for plaintiff.
Sequestration:
Defendant’s motion to dissolve the writ was overruled.
The only ground urged by defendant and appellee in his brief is that plaintiff has offered no evidence against the defendant as to the sequestration; that the evidence is absolutely silent as relates to the sequestration or the cause which influenced plaintiff to sue for a sequestration.
With reference to the grounds urged in the motion to dissolve, we reiterate that which was said in the opinion heretofore handed down.
The motion to dissolve filed in the district court does not allege the point argued. No complaint is made on the score that plaintiff failed to make proof of the cause for apprehending that the property would be canceled, parted with, or disposed of, unless prevented by a writ of sequestration.
In the absence of any plea by defendant to set aside the sequestration on the ground that there was no cause for any such apprehension, we must decline to sustain the point. *1018If there was ground, it should have been pleaded.
The intervention of the “Louisiana Sugar Company, a creditor of the defendant for advances” :
The facts with reference to this intervention are that interveners bound themselves to make advances to the defendant in the amount of $14,000. They entered into a written contract to secure a pledge and pawn on his crop which was duly recorded.
We have noted that prior to the contract between interveners and defendant plaintiff had advanced $2,987.81 to defendant. He had his sworn account for that amount duly recorded on March 14, 190S.
Plaintiff’s agreement with defendant to advance to the latter is evidenced by letters and testimony of witnesses.
The intervener, “the Louisiana Sugar Company,” has a superior right to the plaintiff for all amounts of the $14,000 which was used to enable the defendant to make and gather his crop.
Under former jurisprudence plaintiff’s claim would have been first in rank of privilege as it is first in date. Flower & King v. Skipwith, 45 La. Ann. 895, 13 South. 152.
This decision has been overruled. As made evident by the following, the rule laid down affected the property rights of parties, and for that reason it was stated that the court would not set -aside prior ruling without ample notice that, if ever the question thereafter came up again, it would be reconsidered. La. Grocer Co. v. Adams, 112 La. 75, 36 South. 226.
In Maxwell-Yerger Co. v. Rogan, 125 La. 14, 51 South. 48, the question was again presented to this court and in accordance with the second decision cited, supra, it was reconsidered, treated as res nova with the result that under the last-cited decision intervener’s pledge has priority over plaintiff’s privilege.
Under act 89 of 1886, fixing the rank of privileges and pledges, the pledge is first in point of right; accordingly, defendant’s pledge is superior to plaintiff’s privilege.
The defendant:
He is a rice planter, and for years he had obtained advances from plaintiff’s firm.
The firm was dissolved some time prior to 1908.
The plaintiff, Levert, entered into a temporary agreement with defendant Berthelot to lend him an amount to enable the latter to pitch his crop of rice.
There arose disagreement between plaintiff and defendant in regard to the amount of the advances to be made.
The defendant, being an old customer of plaintiff, assumed from conversations and letters with plaintiff that the amount necessary to cultivate and gather the whole crop would be advanced.
That was not the understanding of plaintiff.
After having read and considered.the letters, we arrived at the conclusion that the defendant has not sustained this ground with preponderance of testimony.
The lower court did not allow the claim of defendant for damages.
We have not found that the court erred.
The intervener:
The company intervening claimed in its petition of intervention the sum of $14,000, secured by pledge, duly inscribed.
The company is entitled to the whole of the advances made by it which were used in cultivating and gathering the crop. A part of the advances we will see later was not so used.
This amount was the $14,000 before mentioned, claimed in the petition — nothing more.
Although it was the agreement that this sum would be advanced, as before stated, the defendant, with the consent of interveners, used an amount of $4,729.19, with which de*1020fendant paid another debt; that is, interveners, instead of paying themselves and satisfying their claim, permitted the defendant to pay another debt not secured by pledge or privilege on the crop.
Having received the crop to an amount sufficient to pay their claim, they must be charged in this settlement with the amount received, which went to the payment of an unsecured claim. Gay v. Pike, 30 La. Ann. 1332; Minge & Co. v. Barbre, 51 La. Ann. 1285, 26 South. 180.
Interveners received a considerable sum over and above the amount of their pledge. The defendant remained indebted to the company for an amount over $7,000.
This does not change the situation, for the second loan was the sum before mentioned. If other advances were made, they would not be so managed as to increase the amount of the pledge above the sum stated. The moment the interveners received amounts— net proceeds — they should have been credited on the $14,000 advances. The interveners could not pay them in satisfaction of other but unsecured claims.
The asserted imputations of payment:
The defendant does not insist that the amount paid to another creditor on another account not secured be credited on the advances for the year 1908, nor does the intervener. He insists, however, that he had a right under the contract to impute the first proceeds of defendant’s crop to the payment of the subsequent cost of cultivating and marketing the crop.
The interveners do not claim a privilege or pledge in their pleadings for any other amount than that covered by the contract— i. e., the $14,000 — and the company asked to be paid by preference and priority from the whole proceeds of the crop and particularly that realized under the sequestration.
The interveners have not asked in the pleadings for any amount save that before stated.
After that sum had been collected from the proceeds of the crop, it was not possible to continue advancing and remain secure under the pledge and privilege for the whole amount of the mortgage, pledge and privilege as if they were blanket securities under which new loans and advances could be secured.
“Contracts made with factors to give them a privilege or pledge on crops must stipulate the sum to be secured by such privilege or pledge, and no further sum than that stipulated and fixed can be covered by contract to the prejudice of creditors.” In any event, no further sum than that claimed in the petition of intervention can be allowed.
We do not conceive it possible under the law to enter into a contract of mortgage to advance say $14,000, and subsequently advance to enable the planter to gather and send his crop to market, and deduct this amount from the proceeds of the crop, and still retain security on the crop for the whole mortgage; i. e., for the fourteen thousand dollars.
The advances were made to cultivate, gather, and send the crop to the market.
Whatever is advanced must be considered as secured by mortgage.
The right reserved by the merchant in his mortgage of imputation to other debts than his mortgage cannot work to the prejudice of another creditor who has a mortgage on the crop.
An illustration:
A commission merchant advances $14,000 to a planter, and secures the amount by mortgage and privilege.
In the contract he reserves the right to make imputations of amount, as he deems proper, as intervener in this instance contends it has.
At the end of the year he reserves the mortgagor’s crop amounting to $30,000, and assumes the right to dispose of $16,000 as he pleases, or, let us say, assumes the right *1022to dispose of it as if there were no other privilege on the crop.
This cannot legally be done. It would be stretching a mortgage security beyond all limits.
The advances, many of them, were made after the seizure under the writ of sequestration.
The statement of the account of the interveners — the Louisiana Sugar Company— shows amount received from the defendant, $6,333, price brought by the crop seized in the case, all of which should be credited on the advances, as interveners urge, leaving due to the interveners, $2,937.81.
There was nothing improper or concealed in this case. It is only a question of priority of claim.
There remains nothing else of the crop of 1908.
This crop is the bone of contention.
The amount which goes to make up the balance was advanced after the seizure and after defendant had furnished an indemnity bond and had taken the proceeds in his possession.
It was not possible to thus increase the amount, and at the same time retain a right under the contract securing pledge.
It is therefore ordered, adjudged, and decreed that the verdict and judgment appealed from are avoided, annulled, and reversed at defendant Berthelot’s costs in both courts. The demand of the intervener is rejected as against plaintiff at its costs in both courts.
It is further ordered, adjudged, and decreed that plaintiff have judgment for the amount of his claim, viz., $3,155, with legal interest from March 1, 1908, on $3,132.94 until paid, and costs out of the funds realized from the defendant’s crops sequestered. Plaintiff’s privilege is recognized on defendant’s crop to said amount, the remainder of the said proceeds, if any, to be paid to intervener. The motion to dissolve the sequestration is overruled at costs of plaintiff in motion.
The prior decree of this court is annulled and reversed. Costs of appeal to be paid by defendant.
PROVOSTY, J., dissents.