delivered the opinion of the court. The plaintiff demanded in the court of probates that she should be placed on tableau of distribution as a mortgage creditor* The judge refused the demand, and she appealed.
The deceased was married to one of the heirs of Walsh, and the note was given on *312the settlement and partition of the estate, for v ’ the balance due the plaintiff
Thomas for the plaintiff—Boyce for the defendant.Our new code requires a special mortgage in cases like this, but by the provision of the old, in force at the time this note was given, it is expressly provided that the heirs in partition have a tacit mortgage for the execution of all the engagements therein contained, and flowing therefrom. Among these engagements is specified, the case before the court, namely “ the return of the money which some lot might be burthened with.”—Civil Code 200, art. 246.
It is therefore ordered, adjudged and decreed, that the judgment of the probate court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that this case be remanded to said court, with directions to the judge to place the appellant on the tableau of distribution as a mortgage creditor. And it is further ordered that the appel-lee pay the costs of this appeal.