The plaintiffs seek to enforce their mortgage'on a tract of land in possession of the defendants.
John L. Wilson avers that he acquired this land, by purchase, at a sale of the succession of the late Jonathan Morgan, in the year 1848, free from all in-cumbrances; that if the plaintiffs ever held any mortgage on it, it ceased to be operative on the 24th June, 1839, ten years after its inscription, in the office of the Recorder of mortgages, without having been reinscribed.
Ferdinand Morgan having become a stockholder in the Consolidated Assocition of the Planters of Louisiana, for the sum of $8000, equal to sixteen shares, executed a mortgage to secure the same on a tract of land, described as having a front of six arpents, on each side of the bayon de Siard, with the ordinary depth of forty arpents, on each side of said bayou, and also ten slaves. In the act of mortgage, inscribed in the office of the Recorder of mortgages, on the 24th June, 1829, it is stipulated as follows, viz :
“And the said appcarers, wishing to make use of the credit granted them by the sixth Section of said first recited legislative Act, they have applied to the said President, Directors and Co., in order to obtain, as in fact they have obtained, a loan of $4,000, &c.; therefore, the said appearers (the mortgagor and his wife, Hannah S. Tennelle,) promise and bind themselves, in solido, to reimburse the said sum of $4,000, on the 24th day of June, 1830, fixed, for "which purpose they have produced an obligation or bond of $4,000, subscribed this day by them, jointly and in solido, payable on the said 24th day of June, 1830, fixed, to the said President, Directors and Co., which obligation or bond was signed He Vcorietur, by the undersigned, Parish Judge, agreeably to law, &c. &c.”
. Ferdinand Morgan having died intestate, without leaving either descendants or ascendants, his succession passed to his collateral relations. In the partition between his widow and heirs, made on the 25th of June, 1831, each of the parties stipulated to pay one-half of the passive debts of the community, among which was that of the plaintiffs, “for the sum of $3,700, or thereabout.” The stock was equally divided between the two parties. The act recites : *595“And now for the faithful and punctual payment of the aforesaid debts, each party for his half, the parties to the agreement, do by these presents mortgage the one party to the other party, each their undivided half of a certain tract or parcel of land, on the bayou de Siard, containing ¡880 acres, whereon the decedent last resided, the same forming a part of said succession, and owned in common by the parties to this agreement, and undivided. It being here understood that said land is to be divided hereafter, and that the one-seventh part of 480 acres of said tract of land, is the exclusive property of the said Mrs. Hannah Morgan, party of the first part.”
On the 6th of December, 1831, the heirs conveyed all their interest in his property to the widow Morgan, who stipulated to pay as part of the price the plaintiff’s claim. The deed of conveyance recites: “Which said sum, the said Mrs. Hannah Morgan is bound to pay by this instrument, and the parties of the first part absolutely refuse to warrant the land herein sold against said mortgage, the same having been explained to the said Mrs. Hannah Morgan, she hereby acknowledging herself to be acquainted with the same, accepts this deed as such, under these circumstances.” This act was inscribed at the time of its date, in the office of the Recorder of mortgages. The mortgage stipulated by the widow in this Act, in favor of the heirs of Ferdinand Morgan, deceased, was cancelled by the latter on the 27th March, 1833, after the death of the former, whose succession was opened in 1832. She, also, died intestate, without issue. At the sale of her succession, on the 17th of November, 1832, Jonathan Morgan, purchased the land in question, for the price of $9,600. In the conveyance to him, it is stipulated as follows: “The one-fourth to be paid in cash, the balance to be paid in one, two and three years, in equal annual instalments, after deducting an amount due the Consolidated Association of the Planters of Louisiana, and an amount duo the heirs and legal representatives of General Ferdinand Morgan, deceased, as also the amount set apart by a partition, as made by experts, appointed by the Hon. the Court of Probates, to partition the estate of Mrs. Hannah 8. Morgan, deceased, among the heirs and legal representatives of said decedent, to the children of Jonathan Morgan, issue by his marriage with Rachel Julia 8t. Glair Tennell, sister of said decedent, after the deductions as aforesaid, leaving the said purchaser indebted to the heirs and legal representatives of Hannah B. Morgan, including his children as co-heirs, in the sum of $4,656.” This conveyance was inscribed in the office of mortgages on the 1st of December, 1832. The following clause is inserted in the partition referred to : “ Jonathan Morgan having purchased the land for $9,600, payable one-fourth cash, and the balance in three equal annual instalments, after deducting the amount of $3,392, for which said land is mortgaged to the Consolidated Association Bank, leaves the sum payable annually by said Jonathan Morgan, of $1,552, of which sum he is entitled as the representative of his children to the one-sixth part of each payment.” At the judicial sale of the estate of the late Jonathan Morgan, on the 3d Jan. 1848, John L. Wilson, one of the defendants, purchased the property for the price of $10,000. The deed of conveyance, after stating that the purchaser had complied with the terms of the sale, to the satisfaction of the executor, recites : “ It is further understood by the purchaser that the above property is mortgaged to the Consolidated Association of the Planters of Louisiana, for the sum of $4,000 for stock, and the production of the certificate of mortgages, is hereby waived, the estate being liable for any liability thereon.”
*596It ;s urged by the defendants that the mortgage executed by Ferdinand Morgan, does not cover the loan made to him, pursuant to the credit to which he was entitled as a stockholder. We consider this question as settled in the case of Bouin, et al. v. Durand, 2 An. 778.
It is also urged that the plaintiffs’ mortgage is lost by pre-emption. In the case of Shepherd v. The Orleans Cotton Press Company, 2 An. 118, the Court said: “We do not understand Art. 3833 as providing for the prescription of mortgages, but, on the contrary, as recognizing the right of rein-scription. after the expiration of ten years. The French side of the Article clearly expresses the intention of the Legislature. It is the effect of the inscription that ceases, not the effect of the mortgage. If the prescription of the mortgage had been intended, it would have been so expressed.
By the Legislative Act of 1842, the property hanks were exempted from the necessity of reinscribing mortgages in their favor. Session Acts -of 1842, p. 232. Under the Act of 1843, any person having an interest was authorized to cause to be cancelled, on the books of the Recorder, all mortgages, the inscription of which had continued more than ten years, provided, however, it did not apply to mortgages against husbands, &c., “ nor to such mortgages in favor of the property banks.” Acts of 1843, p. 61. It was held in the case of the Improvement and Banking Company, 4 An. 473, that this proviso nut only applied to stock mortgages executed in favor of property banks, or made directly to them, but also to all such mortgages as said banks had acquired by subrogation. “ It is doing no violence to language,” the Court remarked, “ to consider all mortgages owned by them as mortgages in their favor, under the statute, without reference to the manner in which they have been acquired.” Under the provisions of these statutes, as construed by our predecessors, it is evident that the mortgage executed in favor of the plaintiffs by F. Morgan, as stockholder, never ceased to have its eflect or to be operative. It can hardly be contended that his stock loan, constituting one of the principal obligations covered by the mortgage, is extinguished by prescription. The partial payments endorsed oh the bond from time to time, (one of which for $1,955 on the 11th of November, 1843) would operate as an interruption. 3 An. 552. Moreover, Jonathan Morgan not only purchased the property previous to the time required for pre-emption, but in the conveyance to Mm expressly recognized the mortgage, and retained in his hand the plaintiffs’ claim as a part of the price or consideration. It is clear, therefore, that he cannot be considered as a third possessor without notice; moreover, the original act of mortgage contains the pact de non alienando. It is equally clear that the mortgage continued to have its effect, or to be operative, whilst the property was still in his possession, under the Act of 1842; and his vendee, John L. Wilson, must be viewed as standing in the same position towards the bank, having in the conveyance to him, fully recognized the existence of the stock mortgage. The only difference between Wilson’s conveyance and that of Jonathan Morgan is, that the former recognized, but did not retain the amount of the plaintiffs’ claim, as part of the price.
The position assumed by the appellee, that interest is only due from judicial demand, is untenable. The proviso, to the sixth Section of the Act of incorporation referred to in the mortgage, prescribes, “ that when they (the stock holders) shall intend to make use of said credit, they shall pay the interest for it at the rate that shall be fixed for the loans,” &c. The eleventh fundament*597al rule, in the twelfth section, provides, that, “ the corporation shall not take more than eight per cent, per annum, on notes discounted or money lent out,” &c. It was decided in the case of The Consolidated Association v. Foucher, 9 L. 478, that in notes given to hanks, if no rate of interest he specified, it will be inferred that the contract was made in reference to the Charter, and governed by the rate of interest fixed therein. See 17th Section of the Charter, and 12th rule, established in accordance therewith, on the 9th of July, 1827. The statement annexed to the plaintiffs’ petition, shows the amount due on the stock note on the 11th November, 1843, to be $2,188, and a payment made on account thereof of $633 01, on the 11th November, 1847.
There is no evidence in the record in support of the claim set up by the plaintiffs’ for an annual contribution of six dollars per share on the stock. As to this claim, we thinkjustice requires that the plaintiffs’ rights should be reserved.
It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, that the plaintiffs have judgment recognizing their right of mortgage on the property described in their petition for the sum of two thousand one hundred and eighty-eight dollars, with eight per cent, per annum interest thereon, from the 11th of November, 1843, until paid, subject to a credit of six hundred and thirty-three 01-100 dollars, paid on the.llth of November, 1847, and if said balance and interest be not paid within ten days after notice of this decree to the defendants, then said property shall be seized and sold according to law, to satisfy the same; it is further ordered, that in relation to the claim set up by the plaintiffs for contribution on stock, there be judgment against them as in case of nonsuit, the appellees to pay the costs of both courts.