Troendle v. DeBouchel , 33 La. Ann. 753 ( 1881 )

On Rehearing.

The opinion of the Court was delivered by

Fenner, J.

After a thorough re-examination of this case, we find ourselves compelled to reverse our former conclusions, as to the right of plaintiff to proceed via executiva against the defendant directly, the latter not being the original mortgagor of plaintiff, and having never conventionally assumed the mortgage, but being only a purchaser of the property mortgaged at judicial sale.

This point did not command as careful consideration in our original opinion, as it would have done, had it not been treated by counsel on both sides, in their first argument, as one of 'minor importance.

Although, under Articles 679 and 706 of the Code of Practice, the sale to the defendant transferred the property to him, subject to plaintiff’s mortgage, which primed that of the seizing creditor, and, although the mortgage of plaintiff contains the pact de non alienando, we can find no warrant for allowing any other hypothecary action against the defendant, than the hypothecary action proper. Such is the undoubted import of Article 709 C. P., which declares that “ the hypothecary action lies against the purchaser of a property seized, which is subject to privileges and mortgages, in favor of such creditors as have said privileges and mortgages, in the same manner and under the same rules and restrictions as are applicable to a third possessor of mortgaged property.”

Plaintiff’s counsel has urged with great earnestness, and we concede, that the term “ hypothecary action ” is generic and embraces as well ex-ecutory proceedings as the hypothecary action proper. But the last phrase of the Article 769, taken in connection with Articles 68 et seq., conclusively shows that the hypothecary action proper is alone referred to. No decision of this Court has ever, to our knowledge, held otherwise.

It is undoubtedly true that plaintiff holding a mortgage importing confession of judgment and containing the npn-alienation pact, cannot, by any sale, conventional or judicial, to which he was not a party, be' deprived of his right to executory process; but he must exercise that right contradictorily with his original mortgagor in the mode prescribed by law, and not directly against the defendant purchaser, who, by the very terms of the law, can only be pursued " in the same mannér and under the same rules and restrictions as are applicable to a third possessor of a mortgaged property.” What this " manner ” and these “ rules and restrictions ” are, had been expressly defined by the previous Article 68 and following.

Our conclusions on this question necessitate an entire change of our decree.

It is, therefore, ordered that our former decree herein be annulled and set aside; and it is now ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and that there be judgment in favor of defendant and against the plaintiff herein, maintaining the exception to the mode of proceeding, and, on that ground, perpetuating the injunction issued herein, plaintiff to pay the costs of the lower court and of this appeal.

The Chief Justice recuses himself, having been of counsel.