| La. | Dec 15, 1840
delivered the opinion of the court.
This is an hypothecary action against the third possessor of three lots of ground in the town of Mandeville. The plaintiffs allege they are the holders of two promissory notes signed by J. Penas, payable to the order of, and endorsed by Jean Perjole Y Ripole, the payment of which is secured by mortgage on the three town lots in question.
The defendant alleges he purchased these lots at sheriff’s' sa[e5 made under an execution and judgment against the maker and endorser of said notes, and that he holds the property by a good and unencumbered title, which has been-perfected by a monition and judgment of homologation.
There was a judgment for the defendant, and the plaintiffs appealed.
The defendant purchased at the sheriff’s sale, made in . 1 . o t i pursuance of a judgment obtained by Hosmer. & Johnson, for the price of a building which they had erected on these l0ts ancj for which they had a privilege as builders. The monition which homologated the sale by execution, has no other effect than to protect the purchaser against the claims 0f the defendant in the execution, or of that of any other person, resulting from any irregularity in the judgment or any of the proceedings, between it and the final adjudication of the premises.
In the present case, the plaintiffs do not complain that the judgment was improperly obtained, nor of any irregularity in the issuing, or in the execution of the writ of fieri facias under which the defendant claims : But, they seek to exercise a J right, which they had no opportunity of opposing to that of the piamtins in the execution. As subrogated to the rights of the vendor of Penas & Ripole, the defendants in the execution, they are now opposed by, and are in concurrence with the claim of the builders. The Louisiana Code provides that “ when the vendor of lands finds himself opposed by workmen, seeking payment for a house or other work Jerected on the land, a separate appraisement is made of the groun(j ancj 0f ^|ie house; the vendor is paid to the amount of the appraisement of the land, and the other to the amount of the appraisement of the building:” Art. 3235.
This appraisement must be made by persons chosen by the vendor and the builder; neither of whom can be concluded by any appraisement made without his knowledge or participation.
An appraisement and sale are now for the firsftime necessary to the exercise of the plaintiffs’ rights as mortgagees. They have been guilty of no laches: No opportunitjMiaving been offered them, to concur in a proper and legal apprisement.
The court below, in our opinion, erred, in disregarding the claim of the present plaintiffs, and giving judgment in favor of the defendants, who did not acquire, from the sheriff, any of the rights of these plaintiffs on the premises, but only those of the defendant in execution.
It is, therefore, ordered, a'djudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and, proceeding to give such judgment as the court below should have rendered, it is, therefore, ordered, adjudged and decreed, that unless the defendant shall pay the plaintiffs’ demand, to wit: the sum of eleven hundred and twenty-five dollars, with interest, at the rate of teffter cent, per annum, from the 22d March, 1839, until paid, an^Kists, the three lots of ground described in the petition, be seized and sold to satisfy said debt and costs. And it is further ordered.;, that the defendant and appellee pay the costs of his opposition and those of the appeal.