
    Stanbrough, Curator, v. Evans.
    Where one to whom slaves sold at the suit of a second mortgagee are adjudicated, enters into a bond to prodace them whenever required for the purpose of being sold under the first mortgage, and subsequently hies, a purchases]* of the slaves at a prQbate sale of his succession. will acquire only the rights of the deceased, and will be bound by his obligation to deliver the slaves. Such a purchaser cannot be considered a third possessor; nor can he require the original vendor to resort to an hypothecary action to enforce his mortgage.
    APPEAL from the District Court of Madison, Selby, J.
    
      Bemiss, Stacy and Sparrow, for the plaintiff. Pierse, appellant, pro se. No counsel appeared for the defendant.
   The judgment of the court was pronounced by*

Kino, J.

At a probate sale of the succession of Jesse Harper, deceased, the defendant, Evans, became the purchaser of four slaves; and, to secure the payment of the notes given for their price, the slaves, together with a tract of land, were specially mortgaged. The plaintiff obtained an order for the seizure .and sale of the mortgaged properly, which was executed by making a levy on the 3d of December, 1842; andón that day the slaves were sold, notwithstanding this seizure, in virtue of writs previously issued under other judgments against Evans, and adjudicated to Walker. On the 5th of December, two days after the sale, Walker entered into a bond, in which lie obligated himself to produce the slaves whenever thereto required, to be sold under the order of seizure of Stanbrough, or the judgment of Kinnard, also a creditor of Evans. Shortly after Kinnard enjoined Stanbrough’s proceedings, and the writ remained suspended until 1845, when, by order of the plaintiff’s counsel, it was returned, and a second was issued, Pending the injunction Walker died. At the probate sale of his property the intervenor appeared in the name of Stanbrough, and forbid the sale of the slaves, notwithstanding which they were adjudicated to himself-and Wallace for $190 50. .Pierse subsequently purchased the interest of Wallace, .and has intervened in this suit and enjoined the plaintiff’s execution, alleging that Harper was without title to the slaves; that they belonged to Evans, when they were inventoried and sold as Harper’s property; that the title to them, fre.e from any incumbrance in favor of Harper’s succession, was vested in Walker by the sheriff’s sale; that the plaintiff’s writ,issued after the intervenor became possessed of the slaves; and that he could only be proceeded against as a third possessor. The right to enforce the mortgage on the slaves only is in controversy. The cause was tried by a jury, who dissolved the injunction with .damages, and the intervenor has appealed.

There is no error in the judgment .appealed from. The evidence establishes clearly the title to the slaves in the succession of Harper, at the date of the sale to the defendant. Walker voluntarily obligated himself to produce the slaves whenever required, to be sold under the judgments either of Stanbrough or Kinnard, who it seems were engaged in a controversy in relation to their respective rights upon the slaves. This contest was in .the nature of a pact of non-alienation. Pierse acquired the rights of 'Walker to the slaves, and incurred all the obligations of the latter in relation to their delivery, when he became the purchaser. Of these he cannot plead ignorance, having appeared at the .sale of Walker’s succession, and forbidden the adjudication as being in violation of the rights of Harper’s succession. The bond of Walker is obligatory on the intervenor, who cannot claim to be treated as a third possessor, and require the plaintiff to resort to an hypothecary action, in order to enforce his mortgage.

Judgment affirmed.  