PATIN vs. HER CREDITORS, 9 La. 64

Mathews, J., delivered the opinion of the court. In this case, the insolvent having obtained an order for a meeting of her creditors, on a petition in which she requested a respite. The meeting took place on the 10th of July, and ' the procbs verbal of the proceedings was concluded by the 'officer before whom it was holden, on the 12th of the same month, wherein it appears that the respite was refused; and this refusal terminated in a forced surrender of the insolvent’s property, which was delivered into the possession of the appellant, as syndic of the estate.

He proceeded to have it sold, but stopped the sale before it was all disposed of, supposing that sufficient had been sold to pay the debts, &c., retaining in his possession a female slave, named Ismene, and her children, and a gold watch, and finally claimed this property as his own, under certain pretexts of title, now urged before this court.

He filed two tableaus of distribution of the funds arising from the sale of property which he caused to be made ; these funds proved to be insufficient to pay the debts of the insolvent, and several of the creditors made opposition to the manner of distribution assumed in the tableaus. From the decision rendered on these oppositions, the syndic appealed; and his claims on the ceded property, and those of the creditor, ’ P. Dubertrand, create the principal difficulty in the decision of-the cause.

The appellant claims the slave Ismene, and her children, as his own property, in consequence of having purchased them under execution issued on a judgment which he had obtained against the husband of the insolvent.

The execution did not issue on this judgment, and consequently no sale took place, until long after the appellant had taken ■ into his possession the slave and her children (now in question) as syndic, and held them as part of the insolvent’s estate Whether this circumstance ought to be considered as conclusive against his claim, need not be decided, as we are of opinion that her right and title to the property in favor of the mass of the creditors, is supported by the evidence of the case.

She obtained a separation of goods from her husband, and in executing the judgment against him, Ismene and her children were sold and bought in by her. This separation, it is true, took place subsequent to the judgment under which- the property was finally sold by Poydras as belonging to her husband, but for any thing which appears to the contrary, it 'was before that time bound by the tacit or legal mortgage of the wife.

Her title is, therefore, the best, independent of the possession which accompanied it, down to a period when the appellant ought not be tolerated in opposing the rights of the creditors, his constituents, to the payment of whose debts he was bound to appropriate it, according to their legal rank • and privileges. The legal or tacit mortgage of the wife lor the restoration of her paraphernal effects, attaches to the community property from the time they came into the possession of the husband.

Her judgment of separation although obtained subsequent to a a mortgage given on the property by the husband, will hold it to the exclusion of the husband’s mortgage creditor. The rules of practice relating to the filing of answers to appeals in the country cases in the Eastern District, tried in N. Orleans, will be relaxed when justice requires it. They are called for trial as they stand on the docket, and if the answer is in when the case is called up, it will be heard.

Mortgages executed in New-Orleans, and not recorded in the parish where the mortgagor resides, until after lie makes a surrender of hispro-perty to his creditors, cannot affect creditors and third persons, who are such at the time of the surrender. The answer on the appeal, is made on the ' part of Dubertrand alone, who prays that the judgment of the court below may be so amended, as to give him the privilege of a creditor with mortgage on the price of the slave Ismene and her children, and also interest on his claim, at the rate of ten per cent, per annum, front'the time it became due.

This answer is objected to, as having been put in too late. It was, perhaps, not filed in strict conformity with rules prescribed by the Code of Practice, but we are of opinion, that the uniform manner in which those cases, called country cases, has been conducted, authorises some relaxation of the severity of those rules. They are always called up for trial as they stand on the docket, and generally conducted with great liberality and accommodation by the advocates: almost every thing being managed by consent, and we are unwilling to see the justice of any case perverted by unt.hought of technicalities.

The answer in the present instance must be received, although from the facts of the cause, it can avail the appellee but little. We assume it as true, that Madame Patin when she made the mortgages to Dubertrand, was domiciled in the parish of Point Coupée; and the facts show that they were not recorded in that parish until after the insolvent was com-polled to surrender her property. The process verbal of the meeting of creditors which produced this surrender, was finished on the 12th July, 1830, and there is no evidence of the mortgage having been put on record before the 16th of that month.

The court below was, therefore, correct in refusing the privilege claimed on these mortgages. Interest being stipulated by the contract, ought to be allowed, and so we presume it is by the amended tableau, being as clearly a part of the debt due by the appellee, as the principal secured by the contracts. Interest stipulated in contracts, ought • to he allowed in putting these ' claims on the tableau of distribution of an estate, because they make a part of the debt due to the claimant.

The retention by a syndic, of any part of the property surrendered without selling enough to pay the debts of the insolvent, is improper, which should charge him with its value, and for which he is accountable to the creditors. The retention of any part of the property surrendered, without selling enough to pay the debts of the insolvent, was certainly not a proper proceeding on the part of the syndic, but as he is made accountable for the value of the part retained by the amended tableau, and as no opposition seems to have been made by the creditors generally to this decision, it must remain undisturbed.

It is, therefore, .ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs, to be paid by the appellant.