(dissenting}. By judgment of this court which became final on October 20, 1913 (Succession of Guillebert, 133 La. 603, 63 South. 237), Mrs. Marie Grenier, a widow, by first marriage, of Constant Guillebert, and wife, by second marriage, of Alfred J. Mayor, was condemned, in solido with Mayor, in their capacities as tutrix and cotutor of Mrs. Adele Barbin, wife of Dr. A. Tillou Barbin, and Miss Camille Modistine Guillebert, her sister, children of said first marriage, to pay each of them $19,406.43, with certain interest, and, during several years which followed, various amounts were paid by the judgment debtors, or out of their property, to Mrs. Barbin, and credited in reduction of the judgment so rendered in her favor; but the record fails to show any payments in reduction of the judgment in favor of Miss Guillebert, who is said to have been an interdict, living in a retreat in France, at the expense of her mother, and to have departed this life since the institution of this proceeding.
Early in 1916 an alias writ of fieri facias was issued, under the judgment mentioned, in so far as it purports to run in favor, of Mrs. Barbin, and, by virtue thereof, the sheriff seized all of the property of the judgment debtors that was pointed out or that could be found, and on April 8, 1916, offered it for sale and adjudicated a portion of it to Dr. Barbin for $5,631, to be paid in cash, after which the remainder was readver-tised, and on May 6, 1916, adjudicated to the same bidder for $8,399.50, for the payment of *57which he was to give a 12 months’ bond; and Dr. Barbin toot possession of the property so adjudicated (for cash and on credit) and has, since then, collected the revenues therefrom. On March 17, 1917, the sheriff instituted this proceeding — being a proceeding by rule, in which he alleges that Dr. Bar-bin has paid no part of the $5,631, and has given no bond for the payment of the $8,-399.50, and requires him to show cause why he should not comply with his bids, or, in the event of his continued default in that respect, why he (the sheriff) should not readvertise and resell the property, at his expense; to which Barbin answers, in effect, -that the law requires him to pay over to the sheriff only such proportion of the amount bid for the property as the seizing creditor has the right to demand, and authorizes him to retain the balance that may be due to the holders of the concurrent mortgage to meet their demand therefor, when made, and that he has offered, and is willing, to make such payment, upon the execution by the sheriff of a clear title to the property, which offer has been refused. He further alleges that prior to the sale of April 8, 1916, Mrs. Barbin had collected the net sum of $12,063.95 in reduction of her judgment, and that (by reason of a certain calculation of interest, which we have not followed), there remained due her, on that day, $14,036.87, and that there was then due Bliss Guillebert the sum of $25,560.-23; that of the net proceeds of the sale of April 8, 1916, Mrs. Barbin was therefore entitled to but $1,777.78, while Miss Guille-bert was entitled to $3,238.12; that of the net proceeds of the sale of May 6, 1916, Mrs. Barbin was entitled to $2,797.17, and Miss Guillebert to $5,079.43; and that he can be compelled to pay and give bond only for the amounts due Mrs. Barbin, and has the right to retain the amounts due Miss Guillebert until they are demanded by her. He alleges: '
“That the properties sold at said sales constituted all the properties owned by the seized debtors; * * that, * * Miss * * * Guillebert being entitled to the proportion of the said sales as already shown herein, * * * he fears, and has just and good reason to believe and fear, that proceedings will be commenced against him by the said Miss * * * Guillebert to force him to pay her said pro rata of the said sales, or to quit, abandon, and turn over to her said property so purchased by him, for the purpose of realizing upon her judgment, and he is therefore entitled to retain the price due the said Miss * * * .Guillebert to meet her claim when the same is made.”
The court a qua gave judgment for plaintiff in rule, and defendant has. appealed.
Opinion.
It will be remembered that, upon the hearing of the oppositions of Mrs. Barbin and Miss Guillebert, the district court awarded each of them a specific sum in one judgment, which, with slight amendment, was affirmed by this court; that, as appears on this appeal, the writ of fieri facias, by virtue of which the sales to Dr. Barbin were made, directs the- sheriff to seize and sell the property of the common debtors, “to satisfy a judgment lately rendered * * * in favor of Adele O. Barbin, wife,” etc.; that the evidence shows that the property seized and sold under that mandate was all that the common debtors possessed; and that the proceeds thereof, as thus sold, were insufficient to satisfy the writ so issued, and, if entirely devoted to that purpose, would leave nothing to be credited upon the judgment in favor of Miss Guillebert, which was secured by the identical judicial mortgage whereby the judgment in favor of Mrs. Barbin was secured. C. P. 684, declares that, where the price offered at sheriff’s sale is insufficient to discharge the privileges and mortgages which prime that of the judgment creditor, there shall be no adjudication; but it has been held to be well settled that that article applies exclusively to special or conventional, *59and not to judicial or general, mortgages. Pasley v. McConnell, 38 La. Ann. 474, 475. Articles 679, 683, and 706, C. P., provide that, where the property is incumbered with special mortgages or privileges which prime that of the seizing creditor, and the amount bid is more than sufficient to satisfy them, the bidder shall pay to the sheriff only the surplus, and shall retain in his hands the amount due on such special mortgages or privileges; and, under article 707, the purchaser may apply the surplus of the price, if there be any, over the amount required to pay the seizing creditor, to having erased the special mortgages existing on the property subsequent to that of the seizing creditor. Article 710 reads:
“If there exist a general mortgage on the property resulting either from a legal or judicial mortgage, the purchaser cannot avail himself of this mortgage, although it he duly recorded, to retain part of the price for the purpose of paying it, or to refuse paying the price, if that has not been already done, unless there has been a suit commenced against him, in virtue of this general mortgage, to make him quit the property, or unless he has just reason to fear that such a step will be taken, in which case, he may retain the price, unless the suing creditor shall relieve him from this disturbance, or give him proper security against it.”
It is true that the mortgage in favor of Mrs. Barbin and Miss Guillebert, resulting from the recording of the judgment in their favor, is one and the same, but, none the less, 'it is a judicial and general mortgage, and falls directly within the terms of the article quoted. It is also true that, -as it serves a double purpose, it may, reasonably enough, be termed concurrent, and that there are cases in which it has been held that the purchaser of property sold to enforce payment of one of a series of notes secured by the same mortgage may retain so much of the purchase price as may be due to the holders of .the other notes of the series; but that is because the mortgage in such case is special and conventional, and' the law requires the purchaser to retain the amount attributable to such holders. Alford v. Montejo, 28 La. Ann. 593. In Succession of Triche, 29 La. Ann. 386, Mr. Justice Spencer, as the organ of the court, after considering different views that had been expressed as to the right of a special mortgage creditor purchasing at probate sale to retain the amount of his bid, said:
“We think the better opinion is that a special mortgage creditor first in rank may, if he purchase the mortgaged property at probate sale, retain the price upon giving security as stated; but if there exist mortgages superior or concurrent, he must pay over the amount of his bid.”
See, also, Godchaux v. Succession of Dicharry, 34 La. Ann. 579; Nichols v. Bryan, 143 La. 291, 78 South. 562.
Defendant in rule alleges in his answer:
“That, the said Miss Camille Modistine Guil-lebert being entitled to the proportion of the said sales, as already shown, * * * he fears, and has just and good reason to believe and fear, that proceedings will be commenced against him by the said Miss * * * Guille-bert to force Mm to pay her said pro rata of the said sales, or to quit, abandon, and turn over to her said property so purchased by him, for the purpose of realizing upon her judgment, and he is therefore entitled to retain the price due the said Miss * * * Guillebert, to meet her claim when the same is made,” etc.
It does not appear to me, however, that the fear thus alleged is of the character contemplated by C. P. 710, as a reason for permitting a purchaser of property to retain the price, since I think it a fair inference that Dr. Barbin knew as much about the title when he acquired it as he has since learned, save, perhaps, that Mrs. Barbin has since received considerable payments on account of her judgment, and has probably inherited a considerable interest in the judgment obtained on behalf of Miss Guillebert. C. C. 2557; Hennen’s Dig. vol. 2, p. 1369, c. No. 1. I may add that, whether the mort*61gage here invoked be the judicial-mortgage, resulting from the registry of the judgment, or the legal mortgage in favor of the minors, which preceded the judgment, the case is the same, since in either case it is a general, and not a special, mortgage, and is within the terms of C. P. 710. Nichols v. Bryan, 143 La. 293, 78 South. 562.
I therefore dissent from the opinion and decree herein handed down.