Succession of Constant Hearing ( 1880 )

Egan, J.

This case comes before us on a rule by the Testamentary Executrix of the deceased on the recorder of mortgages of the Parish of Orleans, to cancel the mortgages against the property of the succession, which had been sold under order of the Probate Court that clear title may be made to the purchasers. There was judgment in the court below directing the cancellation accordingly. The recorder of mortgages has appealed, and assigns as error that the mortgagees and parties in interest were not made parties to the rule, and that they were necessary parties before such judgment could be rendered.

In 21 A. 401, the court said, very properly, that the right to have a mortgage cancelled cannot be tested before the courts, unless all those having an interest be made parties. This doctrine is founded on good reason and is well settled. See 5 L. 329, 6 E. 299, 8 E. 97, 11 R. 177, 2 A. 114.

- v. Hays Eecorder of Claiborne, Parish, — An., p. — The effect of a regular succession sale, is to clear all mortgages created by the deceased, which cannot thenceforward be enforced against the property, whether ordered cancelled or not. If, however, any party whose interests are affected, takes a rule for cancellation of mortgages, all parties in interest must be before the court. The judgment below is reversed, and the cause remanded with leave to make proper parties, the appellee paying costs of appeal.