Taylor v. Pipes

On the Merits. The plaintiff Taylor, the third possessor of the mortgaged property, -enjoins the enforcement of the mortgage against it, on the ground that the defendant has not brought an hypothecary action against him *552 conformably to articles 68 and 69 C. P., tbe mortgage not containingtbe pact de non alienando; and also because execution issued improperly against Tait, the mortgager, in this, there was no notice of judgment-served upon-him, the judgment being rendered by default. The defendant contends that as Taylor acquired the property after his suit had been instituted to forclose the mortgage, he is charged with notice of the proceeding, is not a third person in the sense of the law, and need not be proceeded against conformably (o articles 68 and 69 C. P. This raises the question whether a third person who acquires mortgaged pioperty alter suit or judgment against the original owner, can be deprived of it without an hypothecary action being brought against him conformably to the rule stated in articles 68 and 69 C. P. It is elementary that no one should be condemed or deprived of a legal right without a hearing. If a third person has the right to buy mortgaged property pending the suit to foreclose the mortgage, his right can not be divested without some proceeding contradictorily with him, and the lafiv has provided the hind of proceeding in express terms in articles-68 and 69 C. P. The law has not prohibited the transfer of mortgaged property,, pending the action to foreclose the mortgage. It is only where the ownership of the thing is involved that its alienation is prohibited pending the petitory action. “ The sale of a thing belonging to another is null.” * * * Revised Code 2452. • “ The thing claimed as the property of the claimant can not be alienated pending the action, so as to prejudice his right. If judgment be rendered for him, the sale is considered as the sale of another's property,. and does not prevent him from being put in possession by virtue of such judgment.” Revised Code 2453. In the suit against Tait neither the ownership nor the possession of' the property was involved; Pipes simply sought to foreclose his mortgage. The sale to Taylor pending the action was not the sale of another’s property by his vendor. It mattered not how the suit resulted, Pipes could not be put in possession. He-had only succeeded in getting judgment against Tait and having his mortgage rendered executory. In Barelli-v. Delassus, 16 An. 283, the question was whether the owner of the mortgaged property could alienate it pending the suit to foreclose the mortgage, and the articles 'of the Civil Code quoted were examined on that point; and it was held that: “ The sum and substance of article 2428 (2453) are that the owner of property, who has sued in revendication, is entitled, upon rendition of judgment in his favor, to be put in possession by virtue of such judgment, even, if the defendant has alienated the property during the pendency of the *553 action. But a party who institutes the hypothecary action can not interfere with the right of the defendant, as owner, to alienate the property during the pendency of the suit, for two reasons: first, because, in the words of the article, this is not the sale of another’s properly; and secondly, because the plaintiff, however successful, is not entitled to the possession of the property.” In Maskell v. Merriman, 9 R. 69 , the precise question now in controversy was decided, to wit: whether the purchaser of mortgaged property, after suit or judgment against the original mortgager,' is-entitled to the rights of a third possessor and can only be proceeded against conformably to the rule stated in articles 68 and 69 C. P. It was there held that: “ A purchaser ol property subject to a mortgage, in possession, is entitled to the rights and privileges of a third possessor, though a judgment had been obtained by the mortgagee against the mortgager, but no execution had ■issued before the purchaser tools possession under the sale j it is only when the mortgage contains the pact de non alienando that the third possessor is not entitled to notice.'” It is not pretended that Taylor took possession alter ■ execution had issued against T<tit, the mortgager, contradictorily with whom the judgment foreclosing the mortgage was rendered. Taylor acquired the title and the possession in August, 1866, as appears by the evidence, and the judgment under which the defendant Pipes proceeds was not signed till December, 1868. Taylor was, to all intents and purposes, a third possessor when his property was seized. In Williams v. Morancy, 3 An. 227, it was held that: “ Where mortgaged property is in possession of the mortgager, one expressly subrogated to the rights of the mortgagee may proceed against it via exeeutiva. But where an act of mortgage contains no clause de nonalienando, and the property is sold by the mortgager to a third person, neither the mortgagee nor any one subrogated to his rights can proceed a -;ainst it by order of seizure and sale. The creditor must resort to an hypothecary action.” In Brown v. Routh, 4 An. 270, .it was held that: ‘‘Where an act of mortgage does not contain the pact de non alienando, and the property is in possession of a third person, no judgment can be rendered for its-seizure and sale in an action against the mortgager alone.” The same was also decided in Waddill v. Payne & Harrison, 22 An. 134. These decisions but apply the textual provisions of the law. Article 62 of the Code of Practice declares that: “ The hypothecary action, like all real actions, follows the property to which it is attached,, in whatever hands it may be found, but it is subject to different rules,, according as the property may be in possession of the debtor, of his .heirs,, or of third persons.” The rule, where the hypothecated property is in the hands of a third *554 person, is stated in articles 68 and 69 C. P. It is the only rule applicable to the enforcement of a mortgage on property in the hands of a third possessor, where there is not the non-alienation clause. “ If the hypothecated property be neither in the possession of the •debtor nor of his heirs, but in that of a third person, the creditor has his action against that person in order to compel him to give up the property, or pay the amount for which it stands hypothecated. This is the hypothecary action properly speaking.” C. P. 68. “If thirty days after amicable demand, made from the debtor or his 'heirs, of the payment of an hypothecary debt, it has not been fully discharged, the creditor may bring his action against the third possessor of the property hypothecated to him, to have it seized and sold, if that third possessor have not within the ten days after having been notified •of such a demand paid the amount of the hypothecary debt, including -the interest and costs.” C. P. 69. The plaintiff in this suit, being a third possessor, was entitled to ten days notice of the legal demand made on the mortgager, before •the defendant could bring an action against him to subject his property to the hypothecary claim. This is the plain requirement of article 69 C. P. No notice of the kind was served upon the plaintiff. The defendant ■simply confirmed a judgment by default against Tait, the mortgager, and had the mortgage rendered executory. And he was attempting, when arrested by this injunction, to alienate the property of the plaintiff by carrying on a sale thereof contradictorily with Tait, who had neither the title nor possession of the property seized. The plaintiff, a third possessor, found his property about to be sold in a proceeding to which he was not a party, and he caused it to be arrested by this injunction. A sale'made contradictorily with a party who has neither the possession nor ownership of the property seized would seem to be an utter nullity. But the defendant contends that the rule laid down in articles 68 and 69 C. P. ought not to apply to a purchaser after suit against the mortgager, because it would create endless delay in enforcing mortgages .and would enable third possessors, by successive transfers, practically to defeat the law. We do not see the force of this objection. If the third possessor, proceeded against under articles 68 and 69 C. P., does not give up the property, he is condemned in the judgment to pay the debt. And so judgment may be had against every subsequent purchaser against whom the hypothecary action may be brought. The party whose pursuit is sought to be evaded may thus get judgment against every one endeavoring to defeat him. *555 The judgment under which this seizure was made was a default ■confirmed against Tait, the mortgager. No notice of judgment was given to him. It is well settled that before an execution can issue where a default has been confirmed, notice of judgment must be ■served upon the defendant. This is the rule in all cases where the judgment is appealable. C. P. 624; 6 R. 18 ; 3 L. 237 ; 21 An. 464. The defendant, wholly disregarding the rights of the plaintiff, issued prematurely execution on the judgment against Tait, the mortgager, and seized the land owned by the plaintiff. • . The plaintiff had the right to resist the sale on the same ground that Tait, the author of his title, could. Were he merely a mortgage creditor, instead of the third possessor, he could plead the prematurity of the writ. For the reasons stated we think the district judge did not err in perpetuating the injunction and recognizing the plaintiff as the owner of the land. This disposes of the first case. The second of these consolidated cases is in relation to the rent of the property during the seizure. We think the court did not err in concluding that the plaintiff is •entitled to the rent. It is therefore ordered that the judgment appealed from be affirmed, with costs.