On Rehearing.
The opinion of the court was delivered by
Manning, O. J.A rehearing of this cause has been granted on the application of the opponent, Charles Gayarró. The grounds urged by him for error are, that we subjected the fund, derived from the sale of the property upon which his vendor’s privilege rested, to the payment of the general privileges, -when these latter should have been charged to the Soye fund.
Upon a review of our opinion and decree, we find there was error in holding that his privilege existed, or could be enforced. A material alteration has been effected in the law applicable to this question by a radical change of two articles of the Civil Code.
Article 3240 formerly read as follows: “ The privileges enumerated in the two preceding articles are valid against third persons from the date of the act, if it has been duly recorded, that is to say, within six days of the date,” etc. It is numbered 3273 in the revisa!, and reads: “ Privileges are valid against third persons from the date of the recording of the act or evidence of indebtedness as provided by law.”
Article 3241 formerly read thus: “When the act on which the privilege is founded has not been recorded within the time required in the preceding article, it shall have no effect as a privilege, that is to say, it shall confer no preference on the creditor who holds it, over creditors who have acquired a mortgage in the mean time, which they have recorded before it; it shall, however, still avail as a mortgage, and be good against third persons from the time of its being recorded.”
That article is numbered 3274in the revisa!, and reads: “No privilege shall have effect against third persons unless recorded in the manner required by law in the parish where the property to be affected is situated. It shall confer no preference on the creditor who holds it over creditors who have acquired a mortgage, unless the act or other evidence of the debt is recorded on the day that the contract was made.”
The privilege mentioned in article 3238 (new number 3271), is one of those referred to: “The vendor of an immovable only preserves his privilege on the object when he has caused to be duly recorded at the office for recording mortgages, his act of sale in the manner directed hereafter, whatever may be the amount due him on the sale.”
Formerly, and under the Code of 1825, the vendor of an immovable preserved his privilege if he had the act evidencing it recorded within six days of its date. Now, by the alteration, or rather substitution of a *416new article, that privilege is preserved against third persons only from the date when the act is recorded. As against mortgages recorded anterior to the registry of the privilege, this latter has effect as such only when recorded on the day of the date of the contract creating it.
The application of these new articles of the Code to the present case sensibly affects the opponent, who claims exemption from contribution to the general succession privileges by reason of his holding a privilege superior to them. We are compelled to hold that he has no privilege whatever, as against third persons, since the act which conferred upon him, or preserved, the vendor’s privilege, was not recorded upon the day the sale was made. And this is what was meant by the counsel of Soye when the loss of the privilege was attributed to want of seasonable registry. .
The act of privilege not having been recorded on the day of its execution, the privilege itself was lost as to third persons, and Soye is a third person in this proceeding where the subjection of the two funds to the payment of the succession privileges turns upon the question of privilege vel non. Gayarré’s mortgage was not lost. .It was good from the day it was recorded, but it was junior to Soye’s, and a senior mortgage can not be required to contribute to the payment of privileges of a succession until the junior mortgages are exhausted. Therefore
It is ordered, adjudged, and decreed that so much of our former decree as subjected the Soye-mortgage fund to the payment of the unpaid residue of the widow’s portion, is set aside, and that after the sum derived from the sale of the movables is exhausted, the residue of the succession privileges be first charged against the junior mortgage fund of Charles Gayarré, and not until that is exhausted, can any portion of these privileges be charged against the more ancient mortgage fund of Soye, the costs of this appeal to be paid by the opponent, Gayarré.