
    Foley v. Dufour & Al.
    Where a party, at the suggestion of the court, submits to a nonsuit, on a tender allowing him the faculty to have it set aside, if he is aggrieved by the decision refusing to set it aside, he can appeal.
    The syndic is without authority to raise mortgages existing on. property surrendered, in favor of persons, before it passed into the hands of the insolvent, and who are not his creditors. — 2 L. 4S4.
    Appeal from the court of the first judicial district.
    On a rehearing.
    This is an hypothecary action on a mortgage purchased by the plain- [522] tiff at sheriff’s sale, under an execution which issued on Ms own judgment, against Madame Veuve Elfert, as tutrix of her two minor children, to recover several slaves, subject to said mortgage.
    fhe present defendants are third possessors of these slaves, on which the plaintiff’s mortgage hears; having purchased them at marshal’s sale.
    The evidence shows that Maurice Elfert died in the parish of Assumption, where the present plaintiff resides, in May, 1828. In the same year, his estate was appraised and inventoried, and the widow confirmed as natural tutrix of her two minor children, and in the following year the community property, amounting to $6397, including th.e slaves in contest, was adjudicated to her without the consent of a family meeting.
    On the 11th October, 1834, the present plaintiff obtained a judgment in the court of probates against the widow as tutrix of her two minor children, for $1283 38, with 10 per cent, interest thereon, one half to be borne by each of the minors. Under this judgment he had the mortgage existing on these slaves in favor of said minors, seized and sold, and became himself the purchaser.
    In the mean time the slaves were sold the 28th March, 1831, by the widow (Marie Eose Bousselle Elfert), to Ooulon Jumonville, who became insolvent, surrendered them, with- his other property, to Ms creditors, and they were sold, and the mortgage existing on them raised or attempted to he raised by the syndic in a notarial act. The minors, Elfert, were put on the tableau of distribution as creditors, and on the 13th November, 1834, the tutrix gave the syndic an acquittance for the sum of $4037 76, on account of the proceeds of these slaves. They were purchased at syndic’s sale by Honoré Folse; and on the 6th June, 1836, seized and sold by the United States marshal at the suit of Camille Oastagné, against Folse, and bought by the present defendants.
    [623] The district judge was of opinion the plaintiff could not recover, and suggested that he waive a trial by jury and take a nonsuit, with leave to set it aside on motion, which was accepted. On moving to set the nonsuit aside, the motion was overruled by the court; it being of opinion that the raising of the mortgage by the syndic exempted the slaves from its effects. From the judgment rendered therein, the plaintiff appealed.
    
      L. Janin for the appellant:
    1. The syndic had no right to release this mortgage, even if the release and payment had been real. It has already been stated that the 31st section of the Act of 1817 (2 Moreau’s Dig. 433,) restricts the syndic to the release of the mortgages “in favor of the creditors.” In the present case, when Ooulon Jumonville bought the slaves, the minors Elfert did not become his creditors. Coulon Jumonville did not assume the payment of this mortgage, he only bought subject to it, and, it is said, paid the full purchase-money in cash.
    2. The restriction in the Act of 1817, rests on obvious grounds. The syndic may raise the mortgages in favor of the creditors, because he is their agent and responsible to them, and because they are parties to the proceedings. On the contrary, a mortgage creditor, whose pledge passes, perhaps, without his knowledge, into the hands of a third or fourth purchaser, and is finally surrendered, is not represented by the syndic, has no knowledge of his proceedings, and must assuredly be called upon to present his claim, before his mortgage is extinguished.
    3. The question now raised, however important, has never been adjudicated by this court. But the reasoning here made use of, is only an extract from the opinion of this court in the case of Williamson et al. v. Their creditors., 5 La. Rep. 620. It is now well settled that a probate sale extinguishes all the mortgages granted by the deceased; the settlement of a succession is [624] entirely analogous to that of a surrendered estate, and the same necessity exists in either case for an extinction of the mortgages, and still if the property was mortgaged before it was acquired by the deceased, such a mortgage is not raised by the probate sale, but follows the property.
    4. It makes no difference that after the sale and the erasure of the mortgage, the minors were, for the first time, put on the tableau as creditors. If the erasure was illegal when made, the subsequent assent of the tutrix could not cure its illegality. Moreover, in this case, the tutrix could not act as the representative of the minors, she being the real debtor, and her interests opposed to theirs.
    5. Lastly, this is a mortgage of a peculiar description. It arose from the alienation of the property of the minors, the assent of a family meeting was required to receive it; the same assent is necessary to release or change it. Its release is assuredly the alienation of the minors’ property, and should the powers of a syndic be as extensive as contended for by the defendants, they would be restricted in this case by the formalities prescribed for the aliena: tion of the property of minors. It is perhaps correct to say, that this is a debt of a higher nature than any other, which might be due to a minor — it is his tutor’s debt — it replaces the minor’s real property, and should partake of the stability of real property. If the proceedings attempted in this case, could be sanctioned, there would be very little security for minors against a spendthrift parent.
    
      Dncros & Mcmoudet, for the defendants,
    insisted: 1. That the plaintiff had lost his right of appeal in taking a nonsuit, which is in the nature of a discontinuance'; and he cannot afterwards ask relief from this court from a judgment to which he voluntarily submitted.
    2. The defendants rely on the release of all mortgages existing on the slaves by the syndic, under the 31st section of the Act of 181?. 2 Moreau’s Dig. 433.
   Mabtif, J.

delivered the opinion of the court. [525]

This case is before us on a rehearing. The defendants and appellees complain that this court erred in rejecting their application for dismissal of the appeal. They urge that a nonsuit is a discontinuance of the action, or at least a judgment granted on the solicitation of the plaintiff, who cannot seek relief at our hands when he has voluntarily discontinued his action, or obtained the judgment he asked for.

In the present case, the plaintiff neither discontinued his action nor prayed for a nonsuit. On the suggestion of the court he submitted to a nonsuit, and waived his right to resist it and insist on a verdict, on a tender allowing him the faculty to have the nonsuit set aside. This faculty is often given at nisi prius to prevent delay in the trial of cases, and afford to counsel time to prepare their arguments and collect their authorities. If, on the hearing of a motion to set aside the nonsuit, the party believes that he is injured by the decision of the court, nothing prevents him from seeking relief by an appeal.

It does not appear to us that we can act on the merits of the case, as requested by the counsel of the defendants.

It appears from the facts disclosed in this case that Maurice Elfert died intestate in the parish of Assumption, in May, 1828, leaving a widow and two minor children; that she was confirmed as the natural tutrix of the minors, and the community property, among which were six slaves and a tract of land on Bayou Lafourche, adjudicated to her and affected by a mortgage in favor of the minors for their portion; that the petitioner obtained a judgment in October, 1834, in the probate court of that parish, against the widow as tutrix of her minor children; that in 1835 a fieri facias issued, and the mortgage in favor of the minors was seized and sold to the plaintiff, and a sheriff’s deed made to him accordingly; that the slaves are now in possession of the defendants, who refuse to abandon them or pay the amount of the mortgage; that the widow sold them to Coulon Jumonville subject to [526] the minors’ mortgage: that Jumonville became insolvent and surrendered them to his creditors ; that they were sold at public auction to one Folse, the syndic having caused all mortgages on them to be cancelled and annulled; that the proceeds of the sale were placed on the tableau to the credit of the minors, and paid over, as is asserted by the defendants and not denied by the plaintiff, to the tutrix and mother of the minors ; that in virtue of a judgment obtained in the United States court at the suit of Oamille Castagné against Folse, the slaves were seized and sold to the defendants. ,

At the trial of the cause, the following judgment was rendered by the court below:

“ After hearing, testimony, on the suggestion of the court the plaintiff submitted to a nonsuit, with leave to said plaintiff to set the same aside; whereupon it is ordered by the court that the jury sworn in this case be discharged from the further consideration of the same.”

Among the reasons assigned by the district judge for refusing to set aside the nonsuit, he was of opinion that the syndic of the creditors of Jumonville had authority to raise the mortgage of the minors, under the 31st section of the law of 1817, 2 Moreau’s Digest, 433, which provides that “the syndics, for the purpose of effecting the sale of the property assigned, shall even he authorized to give a release of the mortgages which may exist on said property in favor of any of the creditors; provided they require the other securities which may have been prescribed by the mass of the creditors; and provided, also, that they keep in their hands the proceeds of said property, subject to the same rights in favor of the said mortgage creditors, which they had on the property itself, on which their mortgages existed.”

It does not appear to us that the minors of Elfert are. creditors of the insolvent, within the meaning of this law. Their rights of mortgage arose before the property passed into his hands; they are not parties to thé concurso, [527] nor has the syndic any authority to act for them as their mandatory. Being of opinion that the court erred on this point, and that the cause must be sent back for further proceedings, it becomes unnecessary to notice any other question raised by the parties.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; that the nonsuit be set aside, and the cause be reinstated and remanded for further proceedings, according to law; the appellees paying the costs of this appeal.  