24 La. Ann. 28 | La. | 1872
The defendant being third possessor of mortgaged Xiroperty, is sought by this action to he held x:>ersonally bound for the Xiayment of a judgment hearing judicial mortgage upon the property purchased by him, and subject to that mortgage. Judgment was rendered against the defendant, and he has appealed.
The facts of the case are, that in the year 1860 the xilaintiff obtained a judgment against Murth Phelan and William Phelan, m soUdo, for $263 99, with interest and costs, which judgment was recorded in May, 1866. Murth Phelan having died, his son, James Phelan, sue
We do not understand this declaration as importing an obligation on the purchaser to pay and discharge the debt for which the mortgage subsists. He has not assumed to pay it as part of the price, nor in any other maimer. The plaintiff has the hypothecary right to require him to pay the debt or surrender the property, but he has not by the contract the right to compel him by a personal action to discharge the debt.
It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendant, the plaintiff paying costs in both courts.