8 La. Ann. 474 | La. | 1852
The plaintiff has appealed from a judgment rendered against him in an action of mortgage, instituted against a third possessor, upon a note prescribed upon its face.
The first ground of error assigned, is that the principle that the accessory falls with the principal obligation only applies so long as the property mortgaged remains in the possession of the original debtor, and that when it passes into the hands of a third person having notice of the encumbrance, and against whom the hypothecary action is brought, as it was in this case, before prescription accrued upon the principal obligation, the mortgage becomes isolated from, and does not fall with it.
This distinction is in direct conflict with Art. 3252 of the Code, which provides that, in all cases where the principal debt is extinguished, the mortgage disappears with it. It also conflicts with Arts. 3249, 3494 and 3495, as expounded by our predecessors, in the case of Shields v. Brundige, 4 La. 326. The passages cited from Grenier and Troplong, have reference to the dispositions of the Code of France, which regulate the prescription of mortgages; our Code contains no such dispositions, and the rule here is without exception, that the mortgage falls with the principal obligation to which it is accessory. See Succ. Linderman, 3d Ann. 714; Succ. of Dubreuil, 12 Rob. 1207; Auguste v. Bernard, 3d Rob. 389.
The judgment is affirmed, with costs.