dissenting. I am not able to concur in tho views taken by my brethren of the law of this case.
According to the provisions of our code, articles 2539, 2041 and 2042, my impression is, that a subsequent mortgage creditor on property, the price of which has only been in part paid, for which the vendor’s privilege and a special mortgage has been retained, can only be cut off by a judicial rescission of the sale, or by judicial proceedings for the recovery of tho price, and the sale of the property under the privilege or mortgage. To allow the parties themselves, by an agreement, to defeat the rights of subsequent mortgagees, I think is inadmissible under the code, and in practice fraught with danger of abuse. Ricks v. Goodrich, 3d Ann. 217.