J. D. O’Banion executed a special mortgage with the pact de non aliendo in favor of M. V. Hargrove on January 31, 1921, on the following described property to secure the payment of $400.00, represented by four promissory notes, viz.: All of the NE% of the NW% and the SE% of the. NW % of Section ,22, containing eighty acres of land. This mortgage was recorded on February 7, 1921. On March 26, 1921, O’Banion gave a second mortgage in favor of Ed L. Clark on 40 acres of the land above described, that is, on the NE% of the NW14 thereof. The mortgage in favor of Clark was- »e-corded on March 26, 1921, over a month after the registry of the mortgage he had given to M. V. Hargrove. W. R. Hargrove, as transferee of the-‘notes, first obtained the issuance of executory proceedings under which the whole tract of 80 acres were seized under his mortgage. He thereafter cancelled his mortgage on 40 acres of the land, and restricted the seizure to the NE% of the NW14 upon which Ed L. Clark had a junior mortgage, an herein-above stated.
Ed L. Clark came into the case by way of third opposition, claiming that the mortgage held by plaintiff, being indivisible, he should be compelled to sell the 80 acres for the satisfaction of mortgage: that he had no right to release 40 acres of the land from the operation of his mortgage and seizure, and restrict the sale to the other forty acres on which Clark, opponent, held a second mortgage. That in thus restricting the £lale to the 40 acres upon which Clark had a junior mortgage, plaintiff is attempting to “cheat and defeat him of his just rights”. The lower court took that view of the case and held that plaintiff had no right to make a partial cancellation of his mortgage, and restrict the sale to the 40 acres to which the mortgage had been confined. The court said this was a fraud on opponent’s rights.
Plaintiff appe'als.
When Clark took a mortgage on the 40-acre tract described an the NE% of the NW% of 80-acre tract, the public records showed that the mortgage of .the plaintiff covered that tract. He knew then that he had, by virtue of his mortgage, the rights of a second mortgagee only. He was not granted any rights whatsoever on the other forty acres upon which plaintiff’s mortgage also rested. Plaintiff said in his testimony that he thought the 40 acres to which he had restricted the enforcement of his mortgage were fully worth the amount of hisi note, and that he did not
In Burgess vs. Gordy,
It is clear from the doctrine recognized in the decisions above cited that plaintiff had the right to subject the portion of the land upon which intervenor had a mortgage to the payment of the entire mortgage. As intervenor had a second mortgage on that portion, it is manifest that his rights were subordinate to those of plaintiff, and that the only right he could claim was to be paid, if any proceeds were left frpm the tale of that part of the land after plaintiff’s mortgage had been satisfied. He had no rights whatsoever on the portion that had been released, and could not possibly be cheated or defrauded of his rights thereon, as was held below.
It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided, annulled and reversed; and it is further ordered, adjudged and decreed that plaintiff have jugment against defendant, ordering the sale of the NE% of NWÍ4, Section 22, T'ownship 3 South, Range 2 We:,t, La. Mer., to pay the sum of four hundred dollars, with eight per cent per annum interest from the maturity of each note representing said obligation, with ten per cent thereon as attorney’s fees; that plaintiff be paid from the proceeds of sale of said property by preference and priority over other claimants; that the defendant pay the cost of the main demand, and that intervenor, Ed L. Clark, pay all the cost of his intervention and third opposition.