Succession of Markey

Howe, J. This case is related to that of Graham v. Succession of *266 Markey, just decided. Tlio sale attempted to bo made under executory process, having been prevented by the suspensive appeal taken from the order dissolving the injunction, a rule was taken by creditors •on the administratrix, 'and a regular probate sale Was made. An account was filed, showing ni> assets save the proceeds of this sale of the land, which was subject to Graham’s mortgage and vendor’s privilege. Graham opposed the account on several grounds, claiming that he should be allowed a larger sum for interest; that he should bo allowed his costs and attorney’s fees in the executory process above mentioned, and that he should be paid by preference to all other creditors. He also opposed other items, but in the view we have taken of the case, we do not deem it necessary to pass on these. As vendor, the appellant, Graham, is entitled to be paid in preference to every ■other claim, except those charges which are necessary to procure the sale of the thing. 13 La. 8 ; 2 R. 280, 527 ; 11 An. 469. He is entitled to interest, as stipulated in the note, at eight per cent, per annum, from May 21, 1867. He is not, however, entitled to costs of his executory process, it having been decided that it was issued improperly. The judgment of the court below must be modified. It is therefore ordered that the judgment appealed from, so far as it dismisses the opposition of James Graham, be avoided and reversed; that said opponent be placed upon the account forthc sum oí $600, with interest •at eight per cent, per annum from May 21, 1867, and paid in preference to all other items of said account, except law charges proper (ot which •attorneys’ fees form no part), commissions of administratrix, and actual expenses of sale, and that, as thus amended, the said judgment bo •affirmed, the costs of appeal to be borne by the succession.