On Application for Rehearing.
Pochb, J.On consideration of the numerous applications for rehearing in this cause, we have discovered several errors which have crept in our review of the very complicated and almost innumerable issues presented in the multifarious pleadings contained in this record. Hence, we have concluded to reopen the case in order to make necessary corrections.
I.
The first complaint which attracts our attention emanates from Moses Lobe & Co., and is levelled at that part of our opinion which holds them liable for legal interest on the amount of their purchase from the date thereof.
In his brief, their counsel is clamorous in his description, and he grows literally censorious in his complaint of the manifest errors which, in his opinion, we have committed in that connection.
His great reliance to support his assertion that we have done injustice to his clients, is on our opinion in the case bearing the title of Morris vs. Executors of Cain, reported in the 34th of our Annuals, p. 657.
He argues that, on the strength and under the guidance of our adju*738dication and of our utterances in that case, he advised his clients of their right to suspend the payment of the price of their purchase, and assured them that they could not be held liable for interests on the amount of their debt. Hence, he concludes, with great assurance, that we must have erred in our present case, or in the previous opinion; that it is now too late for us to recede from our previous utterances, and that, therefore, we have no alternative but to recant our conclusions in the present case, or otherwise we might be charged with glaring judicial inconsistency.
A careful reading of the opinion in the 34th Annual will satisfy any impartial mind that the zeal of counsel has clouded his judgment.
A reference to that case shows that the two points discussed and disposed of therein were as stated in the opinion:
1. “Are the defendants (the executors) entitled to receive the proceeds of sale realized in this suit, to distribute them by an account in the succession of the deceased, which they represent ?”
2. “Has a purchaser of real estate at the judicial sale made in this case the right to proceed, as he has done, with a view to clear the property acquired by him from the encumbrances which burden it? ”
The issue was presented in a proceeding styled an intervention, instituted by Lobe & Co., in which it was proposed to bring all parties in interest into court by means of a notice published in a public journal, under an ex parte order of the district judge.
Now, while the Court recognized the right of a purchaser situatedlike Lobe & Co. to seek by some legal proceeding to clear the encumbrauccs which cloud his title, or in the mean time to deposit the amount of his purchase, it concluded that the mode adopted by them and sanctioned by the lower court was not warranted under our laws; it also held that the executors were not entitled to receive and administer the proceeds of the sale, and hence the following decree was entered :
“It is ordered and decreed that the judgment appealed from discharging the rule of the executors for the proceeds of sale be affirmed at the costs of appellants.”
“ It is further ordered and decreed that the ex parte order rendered on the 9th of August, 1881, on the petition of Lobe & Co. filed on that day be annulled and set aside, and that the prayer therein for such ex parte order be refused without prejudice to further proceedings on the petition itself, contradictorily with the parties therein asked to be cited, the costs of the appeal from the order, including the costs of the rendition of the order, to be paid by Lobe & Co.”.
Now, it appears, from the records of this Court, that in furtherance *739of that decree, Lobe & Co. then renewed tlieir proceedings in the lower court, where they were met by an exception of no cause of action, and one of improper proceeding. On appeal by them from a judgment maintaining the exceptions, this Court recognized the proceeding as proper, as well as intervenor’s cause of action, reversed the judgment appealed from, and remanded the case for further proceedings. 35 Ann. 759, Morris vs. Cain’s Executors.
It is clear that the purport and legal effect of those two decisions were to judicially recognize the right of mtervenors to seek to clear the encumbrances off their property, and'to judicially determine the proper mode of proceeding to that end. No issue was presented involving their right to make a deposit of the purchase price in the instant case, and no decree or mandate affecting such right in the remotest degree was made in either case.
We were, therefore, fully sustained by the record when we made the following statement in our present opinion :
“ Their right to make a deposit was not then a controversy in the case and was not decided.” Hence, it follows that any argument or assertion to the contrary is unwarranted.
The last judgment above-referred to was rendered in May, 1883, and the record before us fails to disclose any effort on the part of Lobe & Co. to press their asserted right to make a deposit to a trial, and as an independent question, it has not to this day been judicially disposed of.
It is, therefore, perfectly safe to conclude that the argument which seeks to commit this Court to a decision or utterance under which counsel could claim the right to assure his clients that they could not be legally held liable for interests on the amount of their purchase, is absolutely unfounded.
It is thus made clear that intervenors can derive no strength from our own precious utterances in support of their present contention.
A second examination of the authorities on which they rested their claim to be exonerated from the payment of interest on their purchase, and of those on which we rested our conclusions has had the effect of solidly confirming our views on the subject.
The apparent conflict between the decisions which they quote and those which we have followed is easily explained by the consideration that' Article 2553 of the present Civil Code, which is quoted in our opinion, was not contained in the Code of 1808, on the provisions of which the decisions of Miles vs. Oden, 8 N. S. 214; Jovellina vs. Minor, 1 La. 72; D’Aquin vs. Coiron, 3 La. 409, which they quote, *740were rendered. Hence ifc follows that the rule was changed, not as a result of a judicial departure from established principles, hut as a consequence of a legislative mandate.
Dealing with the subject in the leading case on this question, this Court said : “All these decisions were made with reference to the Code of 1808; the case now before us arose, under the existing Louisiana Code, which contains some express provisions on this subject, besides those in the former Code.” And the ai'ticle in question is then referred to as the provision introduced in the new Code by the jurisconsults who prepared the amendments to the Code, and doubtless with the intention of establishing the rule that the purchaser must either deposit the amount of his purchase or pay interest thereon. In that case the opinion settled the rule as follows: “To withhold or suspend payment does not necessarily imply a forfeiture of any part of the debt or of its accessories. The "creditor who is unable to give security may require the deposit. He may require it to he made in a hank which pays interest on deposits. If he do not and consents to leave it in the hands of the debtor, the latter becomes a quasi-pledgee, and being at the same time in the enjoyment of the property sold, it would seem should he bound in equity to pay the interest, which is a compensation for fruits, unless he in his turn chooses to relieve himself from the payment of interest'by[depositing the price.” Ball et al. vs. LeBreton et al., 19 La. 149.
This case has been affirmedjn every subsequent opinion rendered in causes in volvingHhaf question. In the instant case it is not contested that Lobe & Co.Uiad the right to suspend payment. It is equally clear that the property ^bought by them bears fruits; hence, they must pay interests.
But, as contended [for by intervenor’s counsel, we should have-framed our decree’so"’as_to"conform with the following conclusion in our opinion: “The appellants are the only parties entitled to the benefit of this decree against the purchaser for interest.” It follows, therefore, that the extent of the obligation to pay interest is to he measured bv’the aggregate amount accruing out of the purchase price to the notes held by Julius Meyer and Homy and David Roos.
The complaint of the same counsel of that part of our decree in distributing'llie'costs incuned in the trial below is also well founded and in both these particulars we shall amend our original decree to ‘ the relief of Moses Lobe & Co.
IT.
The next application to he considered is that made by counsel for *741tlie Germania Bank, who charge error in onr conclusions in favor of Henry Roos. They contend that the record affords no proof of the legal rights of Roos to the ownership and possession of the notes Nos. 5, 6, 7 and 30 of tlie series of 24 mortgage notes. A second examination of the record on this point leads us to the conclusion that the contention is unfounded, and to adhere to the reasons of our original opinion.
But the bank is entitled to relief on the question of costs. There is error in holding her for a portion of the costs in the lower court, and to that end our amended decree will be particularly in her favor.
III.
We shall now note the complaint of the present counsel of M. Frank, who is held up as no party to the proceedings and as having been erroneously condemned to pay interest on the amount of his purchase, as well as to costs. His counsel are mistaken in their contention. Although Frank had made no appearance by pleadings or by counsel, he had been legally made a party to _the~ concur sus. A default had been taken against him in two of the numerous pleadings which were all joined in the consolidated proceedings, and the district judge rendered in his favor precisely the same judgment which was rendered in favor of M. Lobe & Co., and, like them, he is now an appellee before this Court, and equally within the scope of any judgment which may be rendered in favor of the appellants in the cause.
When the district court decreed that he was entitled on payment of the amount of his bid without interest, to a full cancellation of the mortgage and other encumbrances which affected the property which he purchased, no one was heard to complain in his behalf that he was not involved in the contest.
Our conclusions as to him are correct and they will remain undisturbed.
IY.
We are favorably impressed with the complaint of' counsel for the Canal Bank from that part of our opinion which purports to give legal effect to the preference recognized as binding in our opinion, granted by Henry Roos as the holder of eight of the mortgage notes to the eleven notes of the same series held by J. C. Morris and by tire Canal Bank.
Under a correct construction of that act it is clear that the status of the notes 8, 9, 14, 18 and 19, which were not then held by either of the contracting parties, remains as unaffected as if the act of preference *742had never been executed. It follows therefore that, with the act, as without it, the holder of each of those five notes is entitled to participate in one-twenty-fourth of the whole fund, for the reason that he is neither preferred nor postponed to the holders of any of the other notes of the series. •
Now the practical result of our decree is to advance the holders of these five notes, quoad the eight postponed notes, to the same rank held by Morris and the Canal Bank, and thus to make them participate each for one-sixteenth instead of one-twenty-fourth of the proceeds of the sale, and therein consists the error which we shall correct in our new decree.
In order to facilitate a proper execution of the judgment, we recast the decree in its entirety; although the corrections are intended to affect certain portions only.
It is therefore ordered that our previous decree be annulled and set aside, and that the following decree be rendered in its stead:
It is therefore ordered, adjudged and decreed that che judgment appealed from be amended in the following particulars :
1. That said judgment, in so far as it exonerates Moses Lobe & Co. and M. Prank from the payment of interest on their purchase, as it denies the ownership of appellants to the mortgage notes which they claim to hold, and in so far as it maintains the action of Wiltz, public administrator, for the simulation pro tanto of the act of mortgage under which appellants declare, be annulled and avoided. It is further decreed
2. That five-tweuty-fourths of the principal of the fund realized be set apart for the benefit of the Germania Bank, as holder of note 19 for one-twenty-fourth; of David Roos, as holder of notes 14 and 18, for two-twenty-fourths ; and Julius Meyer, as holder of notes 8 and 9, for two-twenty-fourths.
3. That out of the residue, nineteen-twenty-fourths, J. C. Morris and the Canal Bank, as holders of the notes 11, 12, 13, 15, 16, 17, 20, 21, 22, 23 and 24, be paid in full and by preference out of the amount accruing to and remaining over to the credit of Henry Roos, as holder of notes 5, 6, 7 and 10; and of the Germania Bank as holder of the notes 1, 2, 3 and 4.
4. That Moses Lobe & Co. and M. Prank be condemned to pay interest at the rate of five per cent per annum from June 18, 1881, on the balance remaining due by them respectively on the respective amounts of their purchases, to the extent of the aggregate amouut of the notes held by appellants as follows; of notes 8 and 9 held by *743Julius Meyer, of notes 14 and 18 held by David Roos, and of notes 5, 6, 7 and 10 held by Henry Roos.
. 5. That the recorder of mortgages be ordered and required to cancel and erase the said conventional mortgage executed by L. B. Cain on February 25, 1878, and the legal mortgage resulting from the registry of the marriage contract between L. B. Cain and Caroline Cain, in so far as it affects their property, as soon as Moses Lobe & Co. and M. Frank shall have complied with the terms of this decree. ’
It is further ordered that in all other respects and particulars the judgment appealed from be affirmed aud made the judgment of this Court.
It is further ordered that all costs below incurred in the action of Wiltz, administrator, as against the validity of the mortgage and the claims of appellants, be taxed against said public administrator, and all others costs below equally between Moses Lobe & Co. and M. Frank; and that the costs of appeal be taxed equally against P. S. Wiltz, Jr., public administrator, M. Lobe & Co., M. Frank, and the Germania Bank.