Guidry v. Rees

7 La. 278 | La. | 1834

Martin, J.,

delivered the opinion of the court.

The only question which this case presents, is whether a PersonJ who between the year 1808, and the time of the pro-mulgation of the Code of Practice, purchased land, affected by a tacit or legal mortgage, may require the discussion of a of land, still in the possession of his vendor, lying in any part 0f the state.

According to the Civil Code of 1808, article 44, page 462, and page 430, article 10, the third possessor of mortgaged property, not personally bound for the debt, may resist the attempt to sell the land or property in his possession, until the land or property in the possession of the principal debtor, within the state, be first discussed, unless in too distant a part of the state. Civil Code, p. 434, art. 26.

According to the provisions of the Code of Practice, article 72, the discussion of land or property, not situated within the jurisdiction of the tribunal, of the place where payment was to have been made, is disallowed.

It is clear to the court, that this provision, of the Code of Practice, cannot affect the rights, resulting from contracts, entered into before its enactment. The effect of law is generálly prospective. If it maybe retrospective in atiy case, the intention of the legislature must be evident, and cannot command obedience to its will, when the law cannot be executed, without affecting the obligation of contracts, theretofore entered into.

neces_ sary thatthe money required to defray the expenses of discussion of properly, he tendered at the time of filing the plea5 it is sufficient if the money be deposited in court in pursuance of an order directing it to be done ■within a specified time.

' The District court correctly sustained the plea of discussion, in this case; and although the land required to be discussed^ was not shown to be situated within the jurisdictional limits of thé place in which the payment of the money due, was to be made, but in an adjoining parish, yet the defendant and third possessor, is shown to have bought the land seized, several years before the promulgation of the Code of Practice.

It has been further objected, that no money was paid in, or tendered, when the plea of discussion was filed; but it appears, the District Court directed the deposit in the clerk’s office, of a sum of money, to cover the expenses of the discussion and the deposit was made accordingly. This we think was sufficient.

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