1. The failure to inscribe or to reinscribe a mortgage of lands
in Louisiana does not affect its validity as against the parties
thereto or their heirs.
2. To secure the payment of his note, A., the owner of lands,
executed a mortgage of them which was duly inscribed, but never
reinscribed. He subsequently conveyed them to B., who contracted to
pay the note as part of the purchase money, and, to secure it and
the remainder of the purchase money, granted a mortgage of them
with vendor's privilege, in the act of sale to him, which was in
due time inscribed and reinscribed. After the note was overdue, B.
paid interest thereon from time to time, and, to compel him to
perform his contract, A. brought suit, which was pending at the
time that he filed his bill of foreclosure against B. and C., the
latter being the transferee of the note and mortgage executed by
A.
Held:
1. That the prescription as to the note was, against A. and B.,
interrupted by the payment of the interest, and was suspended
during the continuance of that suit.
2. That notwithstanding the lapse of more than ten years since
the inscription of that mortgage, C. is entitled to priority of
payment out of the proceeds of the sale of the lands.
3. A party, after contesting by prolonged litigation a claim
against him, is not entitled to the benefit of art. 2652 of the
Civil Code of Louisiana, and cannot cancel it by paying what it
cost the party to whom it was transferred.
The facts are stated in the opinion of the Court.
MR. JUSTICE WOODS delivered the opinion of the Court.
On Feb. 1, 1850, the complainant, Joseph S. Cucullu, was the
owner of certain real estate situate in the Parish of St. Bernard,
in the State of Louisiana, known as the Myrtle Grove Plantation. On
the day mentioned, he made and delivered to one E. Villavaso his
note of that date for $10,000 borrowed money, due in twelve months,
and secured the same by an act of mortgage, dated Feb. 7, 1850, on
said plantation, and on Feb. 4, 1853, he made another note, also
for $10,000 borrowed money, due in one year, payable to himself,
and endorsed and delivered it to the same Villavaso, and secured it
by another act of mortgage on said plantation. No part of the
money
Page 103 U. S. 106
which Cucullu by these notes promised to pay has ever been paid.
The mortgages executed to secure the notes were duly inscribed in
the proper mortgage office, but have never been reinscribed.
On Sept. 28, 1857, Cucullu sold and conveyed the Myrtle Grove
Plantation to one Augustus W. Walker for the purchase price of
$135,000. Twenty-five thousand dollars of the consideration was
paid in cash, and for the residue Walker gave his notes, two for
$5,000 each, both payable Jan. 31, 1858; six for $13,333, payable
respectively on December 10 in the years 1858, 1859, 1860, 1861,
1862, and 1863; and he assumed to pay for Cucullu the two notes
above mentioned, made by him for $10,000 each, payable to
Villavaso. To secure the payment of these obligations for the
purchase money, including the Villavaso notes, Walker, in the act
of sale from Cucullu to him, granted a mortgage on the Myrtle Grove
Plantation, with vendor's privilege in favor of Cucullu.
The two notes for $5,000 were never paid; it is conceded that
they are prescribed, and they do not appear in this case.
Walker paid in full the second of the notes for $13,333, being
the one which fell due Jan. 10, 1859, and one-half of the first
note for $13,333, being the one which fell due Jan. 10, 1858. The
other half of this note, with interest, and the four other notes
for $13,333, remain wholly unpaid. These unpaid notes of Walker
were all claimed by Cucullu, in the bill filed in this case, to be
his property.
The mortgage granted in the act of sale by Walker to secure the
obligation entered into by him for the payment of the purchase
price of the Myrtle Grove Plantation was duly inscribed and twice
reinscribed in the mortgage office, according to law, thus
preserving the privilege of the mortgage. By act dated Feb. 4,
1858, between Villavaso and Walker, the time for the payment by the
latter of the Cucullu notes was extended until Feb. 1, 1859.
In 1860, Cucullu, desiring that the notes for $10,000, given by
him to Villavaso and secured by mortgages on the Myrtle Grove
Plantation, should be paid off by Walker, who had assumed their
payment in the manner above mentioned, began a suit against Walker
in the District Court for the Parish of St.
Page 103 U. S. 107
Bernard to compel him to pay them, and he prayed that Walker be
ordered and adjudged to discharge the said Villavaso mortgages. To
this suit Walker filed an exception in which he alleged that the
petition disclosed no cause of action; the exception was overruled.
Walker then filed an answer, denying that the Villavaso notes were
due and alleging that they had been extended and renewed. The court
gave a decree for Cucullu, treating the suit as one to enforce the
specific performance of Walker's contract to pay the Villavaso
notes and mortgages. This decree was reversed by the Supreme Court
of Louisiana on the ground that Villavaso was not made a party to
the suit, and the cause was remanded in order that Villavaso might
be brought in.
Thereupon, on Oct. 7, 1861, Cucullu filed an amended petition in
which he averred that
"by the decision of the supreme court rendered in this case, the
holders of the mortgage notes and claims, the payment of which
petitioner sought to enforce in his original petition, were
necessary parties to the suit;"
the amended petition therefore prayed that Villavaso be made a
party and judgment rendered as prayed for in the original
petition.
Villavaso, having been cited, filed an answer to the amended
petition on Feb. 7, 1862, in which he averred that Cucullu had no
cause of action against him because he, being the holder and owner
of the two notes of Cucullu for $10,000 each, secured by the
mortgages of Cucullu to enforce their payment, had already issued
executory process against Walker on his contract to pay these
notes. After the filing of this answer, nothing was done in the
suit, and it is still pending.
On Oct. 21, 1861, a petition was filed in the District Court of
St. Bernard Parish by Villavaso against Walker to foreclose the
mortgages given by Cucullu to him on the Myrtle Grove Plantation to
secure the two notes made by Cucullu for $10,000 each. This suit
was a writ of seizure and sale taken out against Walker, who was
Cucullu's vendee, and who was, at the time the writ was issued, in
possession of the plantation. The writ bore date Nov. 21, 1861.
In this suit Hernandez, on Oct. 1, 1874, intervened and filed
his petition, averring that he was the owner of certain of the
Page 103 U. S. 108
notes made by Walker to Cucullu, and secured by mortgage on the
Myrtle Grove Plantation, and claiming that the Walker mortgage had
precedence of those from Cucullu to Villavaso, because the latter
had not been reinscribed within ten years, and praying an
injunction against the sale of the plantation under the writ of
seizure and sale, which had been issued upon the mortgages given by
Cucullu to Villavaso. The injunction was allowed. Before this suit
was finally terminated, Villavaso sold out to one James E. Zunts
his interest therein, and all his title to the notes executed by
Cucullu, and to the mortgages on the Myrtle Grove Plantation given
to secure them, and Zunts was substituted as plaintiff in the
suit.
The court declared Hernandez, by reason of his ownership of the
Walker notes, to be a first mortgage creditor on the Myrtle Grove
Plantation. Zunts, the vendee of Villavaso, alone appealed from
this judgment. It was affirmed by the supreme court in May, 1876,
on the ground that Villavaso had not preserved the priority of his
mortgages as against Hernandez, who was declared to be a third
person, by proper reinscription, and therefore Hernandez,
representing a part of the second mortgage, had priority over the
first.
On Aug. 7, 1875, the mortgaged property had been sold by the
sheriff, and adjudicated to Zunts for $10,000. He paid no part of
the purchase money, because he claimed the right, as first
mortgagee, to retain the entire price as in part payment of his
mortgages.
After the decision in favor of Hernandez, just mentioned, Zunts,
by notarial act dated July 7, 1877, sold and transferred to
Hernandez "all his right, title, interest, claim, and demand, of
whatsoever nature or kind, in and to Myrtle Grove Plantation."
Hernandez having thus, as he claimed, acquired all the rights of
Zunts in the suit, took a rule to compel the Sheriff of St. Bernard
Parish to execute a deed to him for the Myrtle Grove Plantation on
payment of $10,000, the price at which it was struck off to Zunts
at the sale made on Aug. 7, 1875. This rule was made absolute July
7, 1877.
On Nov. 23, 1877, the bill in this case was filed by Cucullu. He
claimed to be the owner of five of the notes made by Walker
Page 103 U. S. 109
for the purchase money of the Myrtle Grove Plantation. He
averred that the plantation was the property of the succession of
Walker, the mortgagor, but that it was claimed by Hernandez and
various other persons, each of whom asserted title to four of the
Walker notes, which he, the complainant, claimed as his property,
and to collect which he had brought the suit to foreclose.
On March 23, 1879, the circuit court made a decree in the case,
by which it was declared that the title to the Myrtle Grove
Plantation was in the succession of Walker; that Cucullu was the
holder and owner of the unpaid notes made by Walker and secured by
his mortgage on said plantation, being the same mentioned in the
bill of complaint, amounting to the sum of $57,000, with interest,
as claimed in the bill, and that the same continued to be a lien
upon said plantation; that Hernandez, by purchase from Zunts, the
vendee of Villavaso, was the owner of the two notes for $10,000
made by Cucullu and secured by mortgages on said plantation before
its sale by Cucullu to Walker. The decree directed the sale of the
plantation and the application of the proceeds, first, to the
payment of the Cucullu notes held by Hernandez, and the surplus, if
any, to the payment of the Walker notes held by complainant; the
effect of the decree being to give priority to the notes and
mortgages executed by Cucullu.
The complainant Cucullu alone appealed from this decree. This
fact eliminates from the case many controversies decided by the
circuit court, and the evidence applicable thereto, and leaves only
for decision by this court these questions: whether the Villavaso
notes and mortgages were subsisting obligations; whether Hernandez
was their owner; and whether, as such owner, he was entitled to
priority of payment over the unpaid Walker notes and the mortgage
by which they were secured, and of which Cucullu was decreed to be
the owner.
The complainant insists firstly that Hernandez is not the owner
of the Villavaso notes; that the act of transfer by Zunts to
Hernandez, dated July 7, 1877, conveyed only the rights of Zunts as
purchaser of the plantation at the sheriff's sale, made on Aug. 7,
1875; and to support this view the complainant
Page 103 U. S. 110
refers to the affidavit of Zunts, filed by him in the circuit
court in support of a petition for rehearing in this case. In this
affidavit Zunts declares that by said act he did not transfer to
Hernandez the Cucullu notes, but only his rights as purchaser of
the Myrtle Grove Plantation under the sale of Aug. 7, 1875.
This affidavit cannot be considered in evidence for two reasons:
first, because the transfer by Zunts to Hernandez being in writing
must speak for itself, and the purpose of Zunts in executing the
transfer must be derived from it, and not from his subsequent
declarations, and second, even if the evidence were competent, it
should have been presented in the form of a deposition regularly
taken, according to the equity rules by which the witnesses might
have been subjected to cross-examination. The affidavit, being
purely
ex parte, cannot be considered on the final
hearing.
Looking at the act of transfer from Zunts to Hernandez, we think
that by a fair construction it conveys the Cucullu notes and
mortgages. It purports to transfer to Hernandez "all the right,
title, interest, claim, and demand, of whatsoever nature or kind"
of Zunts in and to the Myrtle Grove Plantation. These terms clearly
include a conveyance of the rights of Zunts as mortgagee of the
plantation.
But if the transfer had specifically and in terms conveyed to
Hernandez the rights of Zunts as purchaser under the sale of Aug.
7, 1875, and nothing more, we think it would have carried with it
the notes and mortgages under which the sale was made. By virtue of
the transfer, the vendee would have the right to use them to pay
his bid. This clearly implies title to the notes and the mortgages
by which they were secured. The fact that the sale was not
effectual to convey the title did not divest Hernandez of his claim
to the notes and mortgages and reinvest them in Zunts. It is a
question between Zunts and Hernandez. Zunts sold to Hernandez his
rights as adjudicatee, and all other title and claim which he held
to the Myrtle Grove Plantation; he received his pay for the
transfer; he has no rights left, either as a purchaser or a
mortgagee, and whatever interest he had in either character is
vested in Hernandez by the act of transfer.
Page 103 U. S. 111
But a conclusive answer to complainant's claim that the
ownership of the Cucullu notes and mortgages was not transferred to
Hernandez by Zunts is found in the bill of complaint, which is
framed on the assumption of such ownership by Hernandez. The bill
avers that
"said James E. Zunts, by public act, in the City of New Orleans,
on the 16th of April, 1877, did sell and transfer unto said Joseph
Hernandez all his pretended right, title, and interest in and to
said Myrtle Grove Plantation, and all his pretended rights in and
to the said suit of E. Villavaso, James E. Zunts subrogated, versus
Augustus W. Walker, No. 413 of the docket of the Second Judicial
District Court of the Parish of St. Bernard, and all his pretended
right in and to the notes sued on, and the pretended privileges and
rights of mortgage thereunto attached, whatever they might be; and
the said Joseph Hernandez, in consequence of said transfer and sale
by James E. Zunts, now claims and pretends to be the owner of said
property hereinbefore fully described."
After such an averment in the bill of the purpose and effect of
the act of transfer between Zunts and Hernandez, it does not lie in
the mouth of Cucullu to say that the act did not convey to
Hernandez the title to the Cucullu notes and mortgages. The effect
of the act of transfer is not put in issue. What Hernandez claims
to be its legal import is admitted by the bill, and that is the end
of the controversy upon the point. We think, therefore, that the
title of Hernandez to the Cucullu notes and mortgages must be
considered as settled.
Secondly, it is insisted, however, by complainant, that
even should the title of Hernandez to these notes and mortgages be
conceded, nevertheless it can avail him nothing, because the notes
are prescribed.
Article 3540 (3505) of the Civil Code of Louisiana declares:
"Actions on bills of exchange, notes payable to order or bearer,
except bank notes, those on all effects negotiable or transferable
by endorsement or delivery, and those on all promissory notes,
whether negotiable or otherwise, are prescribed by five years,
reckoning from the day when the engagements were payable."
By article 3551 (3516) of the same code, prescription may be
interrupted in the two modes laid down in article
Page 103 U. S. 112
3516 (3482),
viz., first by a natural interruption, as
when the debtor makes acknowledgment of the debt, or second by the
institution of a suit against the debtor.
One of the Cucullu notes fell due Feb. 1, 1851, and the other
Feb. 4, 1854. By his act of sale of the Myrtle Grove Plantation to
Walker on Sept. 27, 1857, Cucullu declared that these notes had
been renewed and would fall due Feb. 4, 1858.
The complainant claims that this was the last natural
interruption of the prescription on the notes by Cucullu, and that
as no suit has ever been instituted against him on the notes by any
person, or any demand made upon him for their payment, the notes
are prescribed.
By the act of sale from Cucullu to Walker of the Myrtle Grove
Plantation, under date of Sept. 28, 1857, Cucullu acknowledged the
notes given by him to Villavaso to be valid debts, and specified
the time when they would fall due. Walker agreed to pay the Cucullu
notes in the place and stead of the latter, and such payment was to
be in part payment of the purchase price of the plantation.
Walker made payments of interest on these notes from 1858 up to
Feb. 4, 1861. It is the settled law of Louisiana that payments made
by a purchaser of property who assumes as part of the price a debt
due by his vendor is an interruption of prescription as to that
debt, both as to the purchaser and vendor.
Cockfield v.
Farley, 21 La.Ann. 521;
Collier v. His Creditors, 12
Rob. (La.) 398. So that prescription on the Cucullu notes was
interrupted as late as Feb. 4, 1861.
But on Feb. 2, 1860, Cucullu, as we have seen, instituted suit
against Walker to enforce the latter's contract included in the act
of sale to him of the Myrtle Grove Plantation, to compel him to pay
the Cucullu notes. To this suit Walker appeared and made various
defenses, and the case has been pending from that time until now,
and still remains undisposed of. In our opinion, this suit is a
natural interruption of the prescription, for it is an
acknowledgment by Cucullu in the most explicit form that the notes
are unpaid and of his liability to pay them. It is an
acknowledgment that continues from day to day as long as the suit
remains pending, so that it is not merely an interruption but is a
suspension of the prescription.
Page 103 U. S. 113
Furguson v. Glaze, 12 La.Ann. 667;
Barrow v.
Shields, 13
id. 57.
The claim, therefore, that the Cucullu notes are prescribed will
not hold.
Thirdly, it is next insisted by complainant that the
mortgages given by him to Villavaso, not having been reinscribed,
as required by the Code of Louisiana, within every period of ten
years after their date, have become prescribed, and have lost their
lien upon the property described in them.
It is clear from the decisions of the Supreme Court of Louisiana
that this result follows only as to third persons, and not as to
the parties to the mortgage. A mortgage to affect third persons
must be inscribed in the mortgage office, and to preserve its
original rank as to them, it must be reinscribed before the
expiration of ten years from the original inscription. The policy
of the law is to make an investigation of liens easy and simple,
and therefore, except for legal mortgages in favor of minors and
married women, no search for mortgages in the mortgage office is
required for a greater period than ten years prior to the date of
search.
But this applies to third persons only, and not to the mortgagor
or his heirs.
"By the words
third persons' are to be understood all
persons who are not parties to the act or to the judgment on which
the mortgage is founded." Civil Code, art. 3343.
"Consequently neither the contracting parties nor their heirs,
nor those who were witnesses to the act by which the mortgage was
stipulated, can take advantage of the noninscription of the
mortgage."
Civil Code, art. 3344.
By the omission to reinscribe a mortgage within ten years from
the date of the first inscription, the effect of the inscription,
and not of the mortgage itself, ceases. The mortgage remains
unimpaired as between the mortgagor and his heirs and the
mortgagee.
The general doctrine as stated has been repeatedly declared by
the Supreme Court of Louisiana.
Bonin v. Durand, 2 La.Ann.
776;
Haines v. Verret, 11
id. 122;
Seyburn v.
Deyris, 25
id. 483.
Page 103 U. S. 114
The rule was applied to a witness to the mortgage in the case of
Brown v. Sadler, 16
id. 206.
From these provisions of the Code of Louisiana and the decisions
of the supreme court of the state it is clear that no inscription
of the Villavaso mortgages was necessary to affect Cucullu. He
being the mortgagor, they remained valid as against him without
inscription or reinscription, and preserved their rank over a
subsequent mortgage in which he was the mortgagee.
It is claimed, however, by complainant that although the
doctrine may apply to the original inscription, it does not apply
to the reinscription of a mortgage; that unless reinscribed within
ten years from its date, the mortgage becomes prescribed and
ineffectual to bind even the mortgagor.
This claim does not seem to us to be founded in reason or to be
sustained by any decisions of the Supreme Court of Louisiana. On
the contrary, that court, as will be seen by the cases above cited,
makes no distinction, so far as this question is concerned, between
the original inscription and subsequent reinscriptions.
We think, therefore, that neither the lien of the mortgages
executed by Cucullu nor their priority as against the subsequent
mortgage executed to him by Walker has been lost.
The complainant claims,
fourthly, that Hernandez is
estopped from setting up the mortgages from Cucullu to Villavaso as
superior to the mortgage from Walker to Cucullu because, in his
intervention in the case of
Villavaso, Zunts Substituted v.
Walker, he had claimed that the mortgages from Cucullu to
Villavaso had lost their lien for want of reinscription, and the
complainant asserts that this claim was sustained in that case by
the Supreme Court of Louisiana.
An examination of the petition of Hernandez in that case and the
decision of the supreme court shows that the question of precedence
between the mortgages was raised on a different state of facts from
that on which the question arises here.
Hernandez, in the suit of
Villavaso v. Walker, in which
Cucullu was not a party and did not in any way appear, claimed that
the mortgages from Cucullu to Villavaso had, for want of
reinscription, lost their rank as against him, he being the
owner
Page 103 U. S. 115
of the mortgage from Walker to Cucullu. The Supreme Court of
Louisiana sustained this view, and put its decision expressly on
the ground that Hernandez was a third person in the acts of
mortgage given by Cucullu to Villavaso, which had not been
reinscribed.
In the present suit, Cucullu is a party, and is insisting that
the mortgages given by himself to Villavaso have lost their lien
for want of reinscription, and that the mortgage given to him by
Walker should have priority.
The question whether the Walker mortgage, in the hands of
Hernandez as owner, is entitled to priority over the Cucullu
mortgages when held by Villavaso, because the latter had not been
reinscribed, is very different from the question whether Cucullu,
when claiming to be the owner of the Walker mortgage, can assert
priority over the mortgages executed by himself to Villavaso,
because the latter had not been reinscribed.
In his intervention, Hernandez claimed priority for the Walker
mortgage as against Villavaso, holder of the Cucullu mortgages,
because, as to the latter, he was a third person and the mortgages
had not been reinscribed. In this case, it is Cucullu who claims
priority for the Walker mortgage, which, he says, he owns, against
his own mortgages to Villavaso, for want of the reinscription of
the latter. But as to the mortgages made by himself, he is a party
and not a third person, and as to him no reinscription is
necessary.
The position of Hernandez in his petition in the case of
Villavaso v. Walker is not inconsistent with his claim
here, and his claim in this case has not been decided against him
by the Supreme Court of Louisiana in the case referred to.
See
Villavaso v. Walker, 28 La.Ann. 775.
Fifthly, the complainant claims that the notes given by
Cucullu to Villavaso were novated, and that Cucullu was released by
the extension of the time for their payment, granted to Walker by
Villavaso, by the Act of Feb. 4, 1858.
This claim is based on article 3063 of the Civil Code, which
declares: "The prolongation of the time granted to the principal
debtor, without the consent of the surety, operates a discharge of
the latter."
To make this article applicable, it must appear that by the
Page 103 U. S. 116
Act of Feb. 4, 1858, by which Walker agreed with Cucullu to pay
the notes executed by the latter to Villavaso, Walker became the
principal debtor and Cucullu the surety.
It cannot, we think, be reasonably claimed that a debtor is
converted into a surety by his creditor's acceptance of an
additional promise from a third person to pay the debt due him by
his debtor. There is no element of suretyship in such a contract
unless it be that the additional debtor might be regarded as surety
for the original debtor. The relation between the creditor and the
original debtor is not changed by such as arrangement.
It is, however, a sufficient answer to this claim to say that
the bill of complaint contains no allegation in reference to the
extension of the time of payment granted by Villavaso to Walker,
and no claim that Cucullu was discharged thereby, and no allusion
in made to the subject in any part of the pleadings. The claim
that, by the contract of Walker with Cucullu to pay his notes to
Villavaso, Walker became the principal debtor and Cucullu the
surety, and that, by the indulgence given by Villavaso to Walker,
Cucullu, as such surety, was discharged, appears in the case for
the first time in the brief of complainant's counsel.
The evidence to show the facts on which this claim is based
cannot be regarded, for there is no averment in the bill to which
it can be applied. It is not pertinent to any issue in the case.
Whitely v. Martin, 3 Beav. 226;
Smith v. Clarke,
12 Ves.Jr. 477;
Langdon v. Goddard, 2 Story 267;
Gordon v. Gordon, 3 Swans. 400.
Lastly, It is averred by complainant that the purchase made by
Hernandez from Zunts of the notes and mortgages given by Cucullu to
Villavaso was the purchase of a litigious right, and even if the
notes and mortgages are valid claims, no more can be recovered by
Hernandez than he paid to Zunts, and this sum complainant avers to
be $2,100.
This claim is based on article 2652 of the Civil Code of
Louisiana, which declares:
"He against whom a litigious right has been transferred, may get
himself released by paying to the transferee the real price of the
transfer, together with the interest from date. "
Page 103 U. S. 117
The next article, 2653, defines what is a litigious right as
follows: "A right is said to be litigious whenever there exists a
suit or a contestation on the same."
This claim cannot be sustained, for two reasons:
first,
Hernandez did not purchase the Villavaso notes until after the
judgment in the supreme court thereon. The right ceases to be
litigious when judgment has been rendered.
Marshal v.
McCrea, 2 La.Ann. 79;
secondly, it has been
repeatedly decided by the Supreme Court of Louisiana that the
purpose of article 2652 was to prevent litigation, and therefore a
defendant who, instead of paying the price of the transfer,
contests the suit and prolongs the litigation, defeats the very
object of the article, and cannot exercise the privilege it gives.
The complainant should have paid or tendered to Hernandez the real
price of the transfer with interest from date. He would then have
been in a position to claim the benefit of article 2652. He cannot,
after contesting the claim inch by inch and up to the court of last
resort, cancel it by paying what it cost his adversary.
Leftwich v. Brown, 4
id. 104;
Pearson v.
Grice, 6
id. 233;
Rhodes v. Hooper, id.,
356;
Evans v. De L'Isle, 24
id. 248.
We think that the attempt of Cucullu to get rid of the notes and
mortgages given by him to Villavaso or postpone them to the
subsequent notes and mortgage given to himself by Walker must fail,
and ought in equity to fail. Thirty years ago, he borrowed from
Villavaso $20,000, and to secure this money executed mortgages to
him on the Myrtle Grove Plantation which he then owned. He has
never paid that debt. He afterwards sold the plantation to Walker
and took his notes for part of the purchase money, and for the
residue his stipulation to pay the Villavaso notes and mortgages.
Walker has not paid them. While enforcing the lien of the Walker
mortgage and bringing the property to sale to satisfy it, equity
requires that out of the proceeds the notes of Cucullu to Villavaso
should be first paid, unless some reason in law exists by which
they are postponed. We have been able to find no such reason. We
think the decree of the circuit court was right and that it should
be affirmed, and it is
So ordered.