Durand v. Delahoussaye , 28 La. Ann. 622 ( 1876 )

Wyly, J.

Alphonse Tertrou sued out an order of seizure and sale against the succession of Charles Durand, which was enjoined by plaintiff, the administrator of said succession, on the grounds stated in the petition.

In this court the question which plaintiffs attorneys present for decision is: “ Whether a creditor holding a claim secured by special mortgage on property belonging to a vacant and apparently insolvent estate can proceed via executiva against said property in satisfaction of his debt ?” This question has long since been settled in the affirmative by numerous decisions of this court. It is no longer an open question. The law has not made the pecuniary condition of the owner of the hypothecated property a consideration in determining the right of a mortgage creditor to resort to executory process.

Therefore the financial condition of the succession enjoining the execu-tory process in question is immaterial.

It is therefore ordered that the judgment herein in favor of plaintiff be annulled, that the injunction herein be dissolved, and the suit dismissed, appellee paying costs of appeal.

Behearing refused.