| La. | May 15, 1834
delivered the opinion of the court.
The plaintiffs are appellants from the discharge of a rule which they had obtained on the sheriff of the parish of New-Orleans, to show cause why he did not release the subsequent mortgages on a tract of land, sold on a writ of seizure and sale, at the instance of the first mortgage whose claime had exhausted the net proceeds of the sale. Code of Practice, 708.
The sheriff averred his readiness to do whatever] the court would direct, but thought himself entitled to the opinion of the court, in the premises, under the Code of Practice, 629.
The record shows that the sale had been made with the consent of the creditor and debtor, at six and twelve months, who agreed that the purchasers notes should be discounted at a rate not exceeding twelve per cent, a year.
The questions which this case presents, are of very great importance, and we have to lament that the parties thought differently, since no counsel appeared to argue them, either in the first court or in this.
Many are the objections which subsequent mortgagees can successfully make to the extinguishment of their mortgages, or the release of them by the sheriff, when a sale at the instance of the first mortgagee, leaves nothing for them.
In the present case the subsequent mortgagees may think they may resist this extinguishment or release, on the score of the terms of sale agreed on between the first mortgagee and the common debtor, as binding on these two individuals alone. The sheriff has thought it his duty to himself, and the subsequent mortgagees, to refrain from acting till he had the counsel of the court.
Our duty now is not to say, whether he erred, but whether the district judge did so.
Although these mortgagees are not parties to the rule, its being made absolute may do them great injury. They may not be bound by it, but the sheriff may release, and the recorder of mortgages, on the production of the release,
The first duty of a judge is to hear a party, before he makes a decision to his injury. -
Applying this proposition to the present case, we cannot say the first judge erred, when he concluded that the person who required him to order the sheriff to release the mortgages, could not be heard, because he had not made these mortgagees parties or given them notice.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be affirmed with costs.