
    No. 4824.
    J. B. Henry v. Meyer Goldman. Leon G’Sell, Appellant.
    An order of seizure and sale can be issued against mortgaged property transferred to a third possessor who assumed the payment of the mortgage debt, where the act of mortgage does not contain the non alienation clause.
    Whether proper notice has been given to the parties entitled to it, can not be considered in this appeal from an order of seizure and sale. It has repeatedly been held in an appeal of this hind that the only question is, whether the evidence authorizes the issuing of the hat.
    APPEAL from the Fifth District Court, parish of Orleans.
    
      Tissot, Judge of the Second District Court acting in the place of Gullom, J. Braughn, Buck <& Binkelspiel and Hornor <& Benedict, for plaintiff and appellee. Charles Bouque, for Leon G’Sell, appellant.
   Morgan, J.

This is an appeal from an order of seizure and sale, appellant being the third possessor of the property seized, having purchased the same subsequent to the execution of the mortgage which is now sought to be enforced. The act of mortgage does not contain the pact de non alienando, and, under ordinary circumstances, the proceeding via executiva would be an improper one.

But in the act of sale by which the appellant became the purchaser of the property now sought to be sold, he assumed the payment of the notes sued on. This places him in the same position relative to the plaintiff that the original debtor was. The act of mortgage made by the original mortgager imported a confession of judgment. Executory process could have issued against the property while it remained in his possession. It may issue against it when held by a party who has assumed the obligation of -the mortgager.

It is therefore ordered that the judgment of the district court be affirmed.

On Rehearing.

Wyly, J.

In this case the question is, can an order of seizure and sale be issued against mortgaged property transferred to a third possessor who assumed the payment of the mortgage debt, where the act of mortgage does not contain the non alienation clause. This question we answer in the affirmative. This court entertained the same opinion in the case of Woodward v. Dashiell, 15 La. 185.

As to the objection, that there is no evidence of appellant’s assumption of the payment of the mortgage debt, the reply is, the deed which he offers to this court to prove he.is a third possessor and entitled to appeal, shows also his assumption of the mortgage debt. The question whether proper notice has been given to the parties entitled to it. can not be considered in this appeal from an order of seizure and sale, It has repeatedly been held in an appeal of this kind that the only question is, does the evidence authorize the issuing of the flat.

It is therefore ordered that our former judgment remain undisturbed.  