
    No. 1446.
    Marquise de la Villa Palma v. Abat & Generes, et al.
    The insertion in the Act of Mortgage of the pact de non alienandp does not invest the mortgage creditor with the right to disregard the forms of law in mating a forced alienation of the mortgage debtor’s property. The non-alienation clause springs from the agreement of the parties and dispenses the mortgage creditor from the necessity of resorting to the hypoth* ecar^action.
    Tlie transferee of mortgaged property with the pact de non alienando contained therein, may ano to annul a forced sale of the property by the mortgaged creditor on the ground that the formalities of law have not been observed in making the sale.
    The objection that the mortgagee or his transferee has the right to require that the properly mertgaged shall be sold in separate parcels, comes too late if not made before the sale. This xact in itself furnishes no ground to annul the sale.
    from Third District Court of New Orleans, Felloioes, J. A.
    
    
      & M. Voorhies, for appellant, 0. Fufour, for Abat & Generes, appellees.
   Wxly, J.

Plaintiff, tlie purchaser of three lots subject to a special mortgage with pact de non alienando, sues to annul a subsequent sale under the foreclosure of said mortgage. The sale was made under executory process, and the three lots and improvements were sold in block, although appraised separately, and although described in the act of mortgage as separate lots.

Plaintiff’s vendor, A. Costa, had mortgaged these lots prior to selling them to her, and defendants had been the owners and holders of the mortgage note under which the sale was made contradictorily with a . curator ad, hoe, representing the mortgage debtor, A. Costa., who was an absentee. The appraisers were duly appointed by this curator ad hoe and the mortgage creditors on the day of sale.

They appraised two of the lots together at $1800, and the third lot by itself at $1000, making total amount of appraisement $2800.

The curator ad hoe gave the sheriff no instructions whether to sell the property in block or separately: and the same was sold by the sheriff in block under instructions of the seizing creditor’s counsel, for the price and sum of $3675 cash.

On the trial in the lower court there was judgment in favor of defendant, and against plaintiff. Plaintiff lias appealed.

The various grounds of nullity set out iu the petition, are all abandoned by plaintiff’s counsel in the argument before this court, except the position that the sale is null because the lots were sold in block by the sheriff and not separately.

We concur with plaintiff that the insertion in the act of mortgage of the pact de non alienando, does not invest the mortgage creditor with the right to disregard the forms of law in making the forced alienation of his mortgage debtor’s property.

We think the non-alienation clause springs from the agreement of the parties and not from aprohibitory law, based upon motives of public policy forbidding tbe transfer of property so mortgaged. The advantage of this clause is to save the mortgage creditor the necessity of resorting to the delays of the hypothecary action. He can proceed to enforce Ms mortgage directly against Ms mortgage debtor without reference to the transferee of that debtor. But still the transferee is subrogated to his vendor’s rights by virtue of the purchase, and has sufficient interest in the object of the contract of mortgage to sue to annul the sale if the forms of law have not been complied with by the mortgage creditor of his vendor in making the forced sale.

But from a careful examination of the law and the evidence in this case, we cannot concur with plaintiff that the sale is null because the lots and improvements were sold in block and not separately. The property sold in block for a much larger price than its appraisement, wMck was made separately. There is no evidence that the bystanders would have bid a greater price if the offering had been made separately.

But what right has this plaintiff to complain of the sale of property which she only held subject to the rights of her vendor’s mortgage creditor ? With the non-alienation clause she could not expect to be made a party to the sale. She occupied no better position than her vendor, and the sale was made contradictorily with him, through the curator ad hoe 'appointed by the court; and we regard the sale as valid. Even if the defendant in execution had the right to require the property to be sold separately, which we do not admit, still the objection now comes too late after the sale has been made contradictorily with the curator ad hoe. We cannot now permit that objection to be set up to the title acquired by the purchaser. (10 A. 725, 726).

The officer who made the sale in this case testifies that the curator was present and appointed an appraiser, but did not require Mm to sell the property separately; and this is corroborated by the evidence of the curator ad hoe himself.

The objection that the property was sold by the sheriff in block now comes too late. (See the case of Taylor v. Graham, 18 A. 656.)

Eor the reasons assigned wo are of opinion that the plaintiff has failed to make out her case, and her action of nullity must be dismissed. It .(3 therefore ordered that the judgment of the District Court be affirmed with costs.

Application for Rehearing, by A. & M. Voorhies.

The plaintiff respectfully prays for a rehearing, assigning as grounds:

I. — That the fact upon which this honorable court bases its opinion to conclude and estop plaintiff, so far from being borne out by the record, does not exist, and is not averred by the dependants themselves.

Tile court says that the curator was present at the sale and appointed an appraiser, but did not require the officer to make the sale separately; and that this is shown by the testimony of the officer and of the curator. If the curator had been' present at the sale and had remained silent, then, clearly under the decision in 10 An. p. 725, the purchaser would be entitled to.. protection; for that would be a clo'ar case of estoppel, 'flie presence and silence of .the party at the sale, protects third persons purchasing against all informalities and illegalities. But the curator was not present at the sale, and we say emphatically that he does not so state in Ms testimony, nor does tlie officer make such a statement. The whole testimony of the curator is at page 56, Rec., and all he says is, “lie gave no instructions at all to the sheriff in regard to the properties seized and sold in that case.” Not a word morel

Mr. de Annas, the officer, (Rec. pages 56-57). does not as much as allude to the curator ad hoe, nor,to his presence at the sale, nor even to his appointin'/ an appraiser !

The only part of the record that mentions the appointment of an appraiser by the curator, is the. very report of the appraisers, marked X, Rec. p. 39. This appointment was made on the seventeenth' March, 1866, two days before the sale! (Rec. pp. 39, 48).

II. — The case of Taylor v. Graham, 18 An. 656, does not present a case where the property was appraised separately and sold in Mode, notwithstanding the fact that the party had appointed an appraiser who actually had appraised the properties separately. Judge Ilsley says the objection simply was, “that the sheriff sold in block two distinct and separate pieces of property which should have been sold sepm’atel/y.n This objection is disposed of at page 658, the court merely observing: “we cannot perceive any irregularity or illegality in the appraisement of the property sold; and this ground must be disregarded.”

The court decided that there was no irregularity in the appraisement, but nothing more.

III. — The court says: “ The property, sold in block for a much larger price than its appraisement, which was made separately.” JUrqo, no injury was done:

The injury, on the contrary, is proven, not merely by the fact that bidders were deterred from buying; but, conclusively, by proof unmistakable as to the value of the property. The testimony of Bohnecaze, who was agent of plaintiff to rent said property, shows what the value was by the rent it yielded. (See Rec. p. 26.) If, even in war times, it rented for $408 a year, when, as is well known, rents here were merely nominal, your Honors must conclude that the property sold for one half its real value. If the sheriff obtained a higher bid ■ than the appraisement, that only proves how loosely and defectively the appraisement was made, a circumstance not unusual in proceedings by curator ad hoc. But if- the sale in block is irregular and informal, it is null without reference to the fact of injury; and the only object of proving injury in this case is to make it not only a legal but an equitable one.

IV. — The court is mistaken when it conceived that plaintiff was merely a purchaser of property, subject to a special mortgage with clause de non alienando. The plaintiff was the owner previously, but her title "was -not recorded when the mortgage was executed. The mortgagor, as her agent, made the purchase in his own individual name. (See title deeds, Rec. p. 34.) Her agent, subsequently (in fraud of her rights) executed the mortgage in the furtherance of his own individual affairs. Of course the defendants, as third possessors, are protected by the non-registry ; but is it not carrying the doctrine too far to assimilate her strictly to the condition of a mere subsequent tMrd possessor ? If, in the meantime, instead of taking a deed of sale from her agent, she had sued in revendieation and obtained judgment, the mortgage, unquestionably, would still, have remained. But, then, could she have been treated by the mortgagee as a mere third possessor ?

Be that as it may, plaintiff stands at least in the shoes of the mortgagor and if he could argue the nullity of the sale, she certainly can also. That is all she attempts to do here. And the question is: can he defeat her ¡rights by not joining her in the action of nullity? H this question is solved affirmatively, then she is at the mercy of her agent, who first violated his trust by taking title in his own name and then mortgaging the property for Ms own benefit.

Rehearing refused.  