Opinion of the court.

so as to form a continuous line of transportation from the coal mines, over the canal, to tide-waters. Great advantages were expected to result from the completion of that railroad, and it is quite evident that the plaintiffs were willing to accept the prospect of increased freight for transportation upon their canal as affording full compensation for the concession which they made in the articles of agreement.

Principal covenant of the defendants was that they would use all their influence to cause the speedy construction of the railroad, and the plaintiffs proffered the concessions described in the agreement to encourage the enterprise and secure its early completion.*

Support to these views might be drawn from the recitals in the first agreement and from the proceedings of the plaintiff corporation, but it does not seem to be necessary to pursue the subject, as the only covenant of any importance made by the defendants was the one before mentioned, that they would use all their influence to cause the speedy construction of the railroad; and the second agreement contains the recital that the covenant in that behalf had been fully performed as agreed, before the second articles of agreement were executed between the parties.

Unsupported as the declaration is by anything else contained in the record, it is clear that it must be adjudged insufficient, and as the first fault in pleading was committed by the plaintiffs, it follows that the judgment of the Circuit Court was correct.

JUDGMENT AFFIRMED WITH COSTS.

* Commonwealth v. Delaware & Hudson Canal Co., 43 Pennsylvania State, 802.

Syllabus.

PATTERSON v. DE LA RONDE.

1. The 3333d article of the Civil Code of Louisiana, which in English is as follows:

'The registry preserves the evidence of mortgages and privileges during ten years, reckoning from the day of their date; their effect ceases even against the contracting parties if the inscriptions have not been renewed before the expiration of this time, in the manner in which they were first made,"

relates to the effect of the inscription, when not renewed, not to the effect of the mortgage, and declares that the inscription preserves such evidence for ten years, and that its effect ceases if not renewed before the expiration of that period. This construction of the article reached by reading the English and French version together-the English and French being printed in the same volume, by authority of the legislature of that State, in parallel columns, and the French being thus:

Les inscriptions conservent l'hypotheque et le privilége pendant dix années à compter du jour de leur date; leur effet cesse même contre les parties contractantes si ces inscriptions n'ont été, renouvelées avant l'expiration de ce delai, de la même manière quelles ont été prises."

2. The general doctrine, where registry of conveyances and mortgages is reqared, that knowledge of an existing conveyance or mortgage is, in legal effect, the equivalent to notice by the registry, is the law of Louisiana as expounded by the decisions of her highest court.

3. Prescription of a mortgage and vendor's privilege does not begin to run, until the debt secured has matured.

4. By the law of Louisiana, where property, susceptible of being mortgaged, is to be sold under execution, the sheriff is required to obtain, from the proper office, a certificate of the mortgages, &c., against it, and to read it aloud before he cries the property; and also to give notice that the property will be sold subject to them The purchaser in such case is obliged to pay to the officer only so much of his bid as may exceed the amount of the mortgages, &c., and is allowed to retain the amount required to satisfy them.

The law, in these particulars, having been followed in a sale made in this case, and, in his deed to the purchaser, the marshal having recited his proceedings at the sale; his announcement to the bidders of the subsisting mortgages on the property, of which the first was a mortgage of one Mrs. McGee to a certain Hoa; and the retention of the sum bid by the purchaser to satisfy the amount due thereon; Held, that by the terms upon which the purchaser took the property at the marshal's sale, and the stipulations contained in the marshal's deed accepted by him and placed on record, he assumed to pay the amount due on Hoa's mortgage, and could not, therefore, avoid compliance with his contract, in this respect, on the ground that Hoa's mortgage had, in fact, at the

Statement of the case.

time, lost its priority by not being reinscribed before the expiration of ten years from its first inscription.

ERROR to the Circuit Court of the United States for Louisiana.

The case was thus: In April, 1853, Pierre Hoa sold to one Mrs. McGee a plantation and several slaves attached thereto, in Louisiana, for the sum of ninety-five thousand dollars, and for a portion of the purchase-money took her seven promissory notes, two of which were payable, respectively, in five and six years from date. In the act of sale before the notary, which was subscribed by the parties, the officer, and the attending witnesses, the purchaser stipulated for a special mortgage on the property, as security for the payment of her notes; and it was declared that the vendor's mortgage and privilege should extend, not merely to the land and slaves, but to the appurtenances of the land and the improvements. The act of sale was duly recorded in the register's office of the parish.

Before the maturity of the last note given by Mrs. McGee on this purchase, and in July, 1858, she executed a mortgage upon the same property to one Patterson, to secure several notes made by her at the time, amounting to thirty-five thousand dollars. This mortgage was also duly recorded in the office of the register of the parish. In it reference is made to the previous mortgage given by Mrs. McGee in favor of her vendor, Hoa.

In October, 1865, Patterson brought a suit in the Circuit Court for the District of Louisiana upon these notes, and, in February, 1866, recovered judgment for their full amount and interest. Upon this judgment exccution was issued, and the mortgaged property was sold by the marshal to the plaintiff, he being the highest bidder, for the sum of $26,200.

By the law of Louisiana, where property, which is susceptible of being mortgaged, is to be sold under execution, the sheriff is required to obtain, from the office of the register of mortgages in the parish, a certificate setting forth the mortgages and privileges inscribed against the property on

Statement of the case.

the books of the office, and to read the certificate to the bystanders at the place of sale before he cries the property. (Code of Procedure, Art. 678.) The sheriff is also required to give notice at the sale that the property will be sold subject to all privileges and hypothecations, of every kind, with which it is burdened. The purchaser in such case is only obliged to pay to the officer so much of his bid as may exceed the amount of the privileges and special mortgages upon the property, and is allowed to retain in his own hands the amount required to satisfy them.

The law, in these particulars, was followed in the sale made on the execution in this case. The marshal states in his return that the sum bid by Patterson was retained in his hands-first, to pay the mortgage in favor of Hoa; and, second, to be applied on account of marshal's and clerk's fees, and the purchaser's own claim. And, in his deed to Patterson, the marshal recites his proceedings at the sale; his announcement to the bidders of the subsisting mortgages on the property, of which the first was the mortgage of Mrs. McGee to IIoa; and the retention of the sum bid by the purchaser to satisfy the amount due thereon.

Soon after the sale, and before the return was made by the marshal, or the deed to the purchaser was executed, Hoa filed what is termed in Louisiana a petition of intervention and third opposition, a proceeding by which a third person is allowed to become a party to a suit between other persons, for the purpose, mong other things, of enabling him to present any claim which he asserts on the proceeds or property seized and sold under the order or judgment of the court. The object of the intervention of Hoa was to obtain payment, out of the proceeds of the sale, of the amount due. him of the purchase-money of the mortgaged premises. To the petition, Patterson, in the first instance, filed an answer, stating that, at the sale, he bought the property for the sum of $26,200; that out of this sum he undertook, according to law and the proclamation of the marshal, to pay whatever sum might be due to Hoa, alleged to be a creditor of McGee, with a mortgage and a vendor's privilege on the plantation

Argument for the appellant.

superior to his own; but that the amount was uncertain and was not stated by the marshal, and did not appear by the register's certificate read by him at the sale. The answer then proceeds to detail certain transactions which he insisted resulted in a novation of the debt of McGee to Hoa, and to a forfeiture of Hoa's right, by virtue of his mortgage and privilege, to prior payment out of the proceeds of the sale.

No point was made in this court upon the sufficiency of the new matter thus set up, and no further reference to it need be made. Subsequently, and on the day set for the trial of the intervention, Patterson filed a peremptory exception to the demand contained in the petition, to the effect that the mortgage and priority of privilege of Hoa had been prescribed, and that his privilege had been lost by reason of the non-reinscription of the mortgage to him within the delay provided by law.

On the trial the peremptory exception was overruled, and the intervention and third opposition were sustained, and judgment was given for the representatives of Hoa (he having died during the pending proceedings) for $25,000 and interest, "with preference and privilege in the proceeds of the plantation sold" superior to that of all persons, and particularly to that of Patterson, the plaintiff. A second trial granted by the court resulted in a similar judgment.

The 3333d section of the Civil Code of Louisiana, published by authority of the legislature of the State, in English and French, and in parallel columns, is as follows:

IN ENGLISH.

The registry preserves the evidences of mortgages and privileges during ten years, reckoning from the day of their date; their effect ceases even against the contracting parties if the inscriptions have not been renewed before the expiration of this time in the manner in which they were first made.

IN FRENCH.

Les inscriptions conservent l'hypothèque et le privilége pendant dix années à compter du jour de leur date; leur effet cesse même contre les parties contractantes, si ces inscriptions n'ont été renouvelées avant l'expiration de ce delai de la même manière qu'elles ont été prises.

Mr. T. Durant, for the appellant:

Under the laws of most of the United States, a mortgage