Citizens' Bank v. Bailey , 28 La. Ann. 771 ( 1876 )

Moeoan, J.

The defendant, as executor of the last will of Robert H. Bailey, deceased, obtained judgment against Lewis E. Woods on notes dated January 1* 1869, secured by mortgage on certain property. He caused the property mortgaged to be seized, and it was advertised to be sold by the sheriff. The Citizens’ Bank, holding a prior mortgage on the property so advertised, enjoined the sale on the grounds:

First — That the property, instead of being advertised with the condition that the purchaser will have to assume the stock-note due the bank and secured by mortgage, is advertised to be sold for cash to an amount of nine thousand dollars, and an assumption of anote of three thousand one hundred dollars, with interest, the amount due the second-mortgage creditor, without mention of the stock-note due the bank, and of the manner in which it is payable under the charter.

Second — That the property is advertised to be sold in lots of ten to fifty acres, notwithstanding the mortgage of the bank anterior to the constitution of 1868, and without providing for a division of the stock attached to each respective lot.

We do not see how the interests of the bank can be affected by these proceedings. It is clear that the mortgage creditor has the right to have the mortgaged property sold. It is also clear that no sale thereof, no matter how made, could affect the bank’s mortgage, unless the bank consented thereto. The bank has the right to cause the property upon which its mortgage rests to be sold, in whose hands soever it may be found, and nothing which the seizing creditor could do, unless with the bank’s consent, could affect its rights.

As to the objection that the property is to bo sold in lots of from ten to fifty acres, the reply is that under the present constitution it could be sold in no other way. It may be that the constitution does not affect the rights of the bank, as the bank’s mortgage was upon it before the constitution was adopted, but the result of this is simply that the bank’s mortgage, or its rights thereunder, remain undivested and undisturbed by the sale which the plaintiff, through the sheriff, seeks to make; but upon this point we express no opinion.

Judgment affirmed.

Rehearing refused.