
    No. 3675.
    Alexander McNeil, Dutton, subrogated, v. Michael J. Hauck.
    When mortgaged property has been sold under judicial proceedings for tho benefit of tbe senior mortgage creditor, the purchaser may proceed by rule to have the posterior and junior mortgages canceled.
    from the Sixth District Court, parish of Orleans. Gooley, J.
    
      John H. Halsey, for appellant. Labatt & Aroni, for appellee.
   Taliaferro, J.

Dutton being subrogated to the rights of McNeil in a promissory note of Hauck’s to McNeil for $6500, and in a mortgage to secure its payment took out an alias writ of seizure and' sale and caused the property mortgaged to be sold on the third of April,. 1871. A previous order of seizure and sale having been taken out by McNeil, was stayed by the surrender of Hauck in bankruptcy. The alias writ was issued ou the second of February, 1871, two days after the property mortgaged was released and assigned to McNeil by the assignee in bankruptcy. Tbe seizure was recorded on the eighteenth of February, 1871. The wife of Hauck brought suit against him and obtained a judgment, which was duly recorded on the tenth of March, 1871. There was also, it seems, an act executed before a notary, acknowledging by her husband a general mortgage on his property. This act was recorded on the thirteenth of March, 1871. The sale being made, a rule was taken by Dutton against tbe wife and the recorder of mortgages to show cause why her general and judicial mortgages should not be canceled and erased from the records of the mortgage office on the ground of their being posterior in date to the mortgage under which the property was sold. An exception was taken on the part of Mrs. Hauck to the proceeding by rule against her, as her rights can only be divested by a direct action. This exception was overruled. On trial of the rule, judgment was rendered as prayed for by plaintiff in the rule, and the defendant has appealed.

We think the judgment was properly rendered. The seizure seems to have been regularly made and recorded on the eighteenth of February, 1871, some twenty days before the recording of the wife’s judgment. Besides this, it is shown that in the act of mortgage from Hauck to McNeil, Mrs. Hauck intervened and renounced all her rights on the mortgaged property. She seeks to repudiate that act as having been done in error and in ignorance of her rights, but we think unsuccessfully.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs.

Rehearing refused.  