No. 11,668 | La. | Jul 1, 1895
The opinion of the court was delivered by
In his opinion the District Judge stated that Delaune, under the evidence, stood before the court as a purchaser-in good faith utterly untrammeled by any understanding or arrangements between other parties prior to or at the time of the sale; that the issues before him would have to be passed on from that standpoint, and that consideration of the relations of the other parties inter se was irrevelant, and unnecessary to be disposed of. We find-no error in his so holding.
Delaune being a purchaser in good faith we proceed to examine the questions of law before the court. Was the plaintiff, Mrs. Will--
A person who buys property affected by a recorded mortgage containing the clause de non alienando is legally bound and held t.o know that the holder of the mortgage claim is entitled under that clause, in case of default of payment, to enforce his rights as if the original owner still held the property, and to know that in so doing no notice need be given to him. The fact that the subsequent purchaser may have personally assumed payment of the mortgaged debt dpes not affect the mortgagee’s rights if he elects not to accept the assumption of the debt.
This statement, as a general proposition of law, needs no citation of authorities in support of it. We have next to see whether there was any special circumstance in this particular case which would take it out nf the general rule.
The first fact connected with the proceedings to which our attention has been directed is that at the time of the institution of the suit of Mrs. Ratliff, Honoré Folse, one of the mortgagors, was dead. Did that fact impair the mortgagee’s rights springing from the clause mentioned? That question is not anew one; it has been several times asked and answered by this court in the negative. See Boguille vs. Faille, 1 An. 205; Lavillebeuvre vs. Heirs of Frederic, 20 An. 374; Aillet vs. Henry, 2 An. 145; Rowly vs. Rowly, 2 An. 209; Dupuy, Curator, vs. Bemiss, 2 An. 509; McCalop vs. Fluker’s Heirs, 12 An. 551; Randolph vs. Heirs of Chapman, 21 An. 486; Walmsley, Executor, vs. Levy, Executrix, and Levy, Executrix, vs. Raines, Sheriff (consolidated), 36 An. 226.
Were those rights waived or impaired by the mortgagor’s proceeding via ordinaria instead of via exeeutiva?
In Levy vs. Lake, 43 An. 1035, we affirmed the principle announced in Bienvenue vs. Insurance, 33 An. 218, in which the court said:
!i The holder of a mortgage importing confession of judgment is authorized. by law to proceed by executory process against the debtor’s property, and we can not see how any of his mortgage rights can be restricted by a judgment of a competent court condemning his debtor personally to pay the debt, and recognizing the
Did the fact that the property was seized and sold under a. writ of fi. fa., instead of. a special writ of seizure and sale, have any effect upon the legality and validity of the sale? We think not. It is true that a writ of fi. fa. should not and could not legally issue in enforcement of a judgment against a succession, so as to authorize the sheriff holding the writ to seize generally the property rights and credits of the succession, independently of any question as to whether payment of the judgment, or the debt evidenced by it, was secured by mortgage or privilege on particular property; but objections to such a writ in the matter of the seizure of succession property are leveled, not at the form of the writ, but at the action of the sheriff under it. If creditor’s rights are secured by recognized mortgage on special property — by a judgment which would authorize the seizure and sale of the property nnder a writ specially directed to that effect — the debtor can find no just ground of complaint in the fact itself that the court’s authorization to seize and sell was broader than it was justified to give, if the actual seizure and sale made under the writ fell inside of -the particular seizure and sale which the judgment warranted. This question, like the former ones submitted, has been judicially passed upon. See Levy vs. Lake (just cited).
It is contended that, granting that the judgment obtained by Mrs. Ratliff could be legally enforced through and under writ of fi. fa., two writs were necessary to bring about a seizure and sale of the property ip controversy, inasmuch as there were two different judgments entered in the suit. It is maintained that the execution of each judgment should have been supported by separate writ.
The demand of the plaintiff was a single one; the two mortgagors were made parties defendant — 0. Numa Folse personally, and Honoré Folse through his heirs'. The unity or singleness of the demand was not broken by the fact that the case was “ tried ” at different times, as to the different defendants. When judgments were finally obtained against defendants in exact conformity to the prayer of the plaintiff, the case stood quoad its execution as if the different judgments had been rendered at one and the same time. All parties
It is advanced as a ground for the nullity of the sale of the property, so far as the undivided half of the property was concerned which belonged to Honoré Folse, and which was sold to Mrs. C. Numa Folse, that the notes upon which Mrs. Ratliff declared were, quoad Honoré Folse and his heirs, prescribed when she instituted her suit and that the present plaintiff is entitled to invoke prescription though not pleaded by the debtor and his heirs on their owe behalf.
The present suit does not involve, as it stands before us, any question other than the validity and legality of the sale made in execution of Mrs. Ratliff’s judgment. There is no issue as to any personal indebtedness of the plaintiff or of the heirs of Honoré Folse, and no> contest over the proceeds of the sale.
Was the sale as made legally authorized to be made? If the entire-property was legally subject to execution under the judgment against C. Numa Folse, the amount for which it was sent to sale becomes-immaterial in so far as the title of a purchaser was concerned. The title would pass under a thousand dollar judgment as completely as for a five thousand dollar judgment, if the proceedings were otherwise admittedly legal. We do not think that the question of the personal liability of Honoré Folse and his- heirs on the notes given by him and his brother plays any part in the determination of the legality of the sale made in this case.
It is undoubtedly true that the mortgage granted by Honoré Folse on the property purchased by him viewed from the standpoint of an accessory obligation supporting his own personal liability would fall if that personal liability were extinguished, but viewed as an accessory obligation supporting C. Numa Folse’s personal obligation it would be held in force so long as the latter’s obligation was in full force. A person can consent independently of any personal obligation on his-part that his property be mortgaged for the debt of another (Civil Code, 3295). When so given the obligation, whose continued ex--istence is essential under Art. 3285, Civil Code, to the continued existence of the mortgage, is that of the debtor whose debt it secures. Honoré Folse consented that his property be mortgaged not only to-
Plaintiff argues that to maintain the sale in this case would be to justify the sale of her property to pay the debt of her husband, which would be in violation of express law.
The plaintiff did not bind her property for the debt of her husband — she purchased it after the property was mortgaged by the person then owning for the debt of her husband. When she bought she did so cum onere — the creditors’ rights to foreclose and make available his mortgage were not in the slightest degree affected by the after acquisition of the property by the wife — especially so under the clause de non alienando.
We are of the opinion that the proceedings in the case were regular, and that the adjudication vested a legal title in the defendant, De-laune. We see no reason to amend the judgment.
For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from be and is hereby affirmed.