
    
      CROGHAN vs. CONRAD.
    
    East’n District.
    
      June, 1822.
    Application for a rehearing. 11 Martin, 555.
    Whether the holder of a note, secured by a special mortgage, having obtained judgment may levy it on any other property, than that specially mortgaged?
    Denis, for the defendant.
    The court say that the counsel for the defendant relied on Pothier on Mortgages, when, in fact, Pothier on Mortgages was not even cited; but Pothier on Obligations was cited, but not exclusively relied on.
    But the defendant relied principally on the art. 31, 458, of our Civil Code, which has been overlooked by the court, and which says:— "The special mortgage compels the creditor to come on and to cause to be sold the thing which is thus mortgaged to him, before he can come on the other property of his debtor; but that obligation is dispensed with, if it has been stipulated that the general mortgage should not derogate from the special, nor the special from the general."
    In this case we see, by the act annexed to the record, that the mortgage is only a special one. What will become of the above article of our code, if the judgment, which this court has rendered, is confirmed ? An execution must be issued in the ordinary way, and the law and the writ itself say, the moveable effects must be seized first.
    Yet under the article of our code, above cited, I contracted that my land should be seized first.
    It is said the plaintiff can control the execution on the fi. fa.; but the sheriff must be governed by the law, which imperatively commands him to seize the moveable effects first.
    It is said if the plaintiff should have seized other things than the land, against the will of the defendant, he can obtain an injunction; but often times he cannot give security, and in fifteen days, contrary to his contract and contrary to the letter of our Civil Code, his moveable property is sold.
   Martin, J.

delivered the opinion of the court. The authority of Pothier must have the same weight, whatever may be the volume of his works, from which it is quoted.

It is true the Civil Code requires the special mortgagee to seize the property specially mortgaged, before he resorts to any other.

But when a creditor has its debt evidenced by a note of hand, and to the principal obligation resulting therefrom, adds the accessory one of a special mortgage, he may, if he see fit, have an order of seizure, which must be directed against the property specially mortgaged.

Yet nothing prevents his forbearing to resort to his mortgage, and institute his action upon the note. He may, says Febrero and the author of the Curia Phillipica, after having done so, abandon his suit, and put his mortgage in force, and vice versa.

Whether, after having had judgment on the note, he may or not levy it on any property of the defendant, or must first resort to that especially mortgaged, is a question which we will examine when complaint will be made that it was erroneously determined in another court. It does not appear to us that there is any necessity of granting a rehearing.  