
    MOUCHON vs. DELOR.
    East'n District.
    March, 1818.
    He who has a privilege on real estate cannot exercise it, when the estate has passed into the hands of a third person, without first obtaining a judgment against the original debtor.
    Appeal from the court of the parish and city of New-Orleans.
    In 1813, A. Duplantier possessed an estate, in one of the faubourgs of New-Orleans, which he had purchased from the defendant. In the latter part of that year, the street before the estate being out of repairs, through the negligence of Duplantier, the corporation adjudged the work to be done to the plaintiff, who was the lowest bidder, under the express condition, that he should have his recourse on Duplantier alone for his payment. On the 7th of February, 1814, the work being completed, was approved ; on the 14th, Duplantier failed, and on the 22d, the plaintiff received a draft, for two hundred dollars on the treasury, as an advance and to be accounted for, as soon as he should recover the price of his work from Duplantier; on the 16th of April, another draft was given him for two hundred and fifty dollars, as an advance and loan; on the 15th of June, Duplan-tier's syndics, ceded back the estate to the plaintiff, the vendor of Duplantier, the price of the estate being still unpaid.
    
      The present suit was then brought against the present defendant, as owner of the estate, chargeable with the repairs done by the plaintiff. There was judgment for the defendant, and the plaintiff appealed.
    
      Hennen, for the defendant.
    The plaintiff cannot recover, either from Duplantier or the present defendant, for he has received his payment from the coffers of the city : and the corporation cannot use his name, because they have not been subrogated to the plaintiff’s right, This point was determined, by this court at May term, 1817, in the case of Fortier vs. M‘Donogh, 4 Martin, 718.
    But, admitting the liability of Duplantier, and the priviledge for the plaintiff’s claim on the estate, ceded to the defendant, was not a liquidation of the debt with, and a judgment against, Duplantier essential to the plaintiff’s resort against the estate, in the possession of the defendant? Our statute provides, that the third possessor of mortgaged property, cannot be disturbed by the action of a priviledged or mortgage creditor, before judgment is obtained against the original debtor. Civ. Code 461, art. 43. It might be sufficient to cite this law and say ita lex scripta est: but the rule is nei- ther arbitrary nor devoid of wisdom. The acute and philosophical jurists of Rome invented it, and all the modern codes have acquiesced in its justice. It is calculated to protect the honest purchaser from surprize and fraud, by interposing the vendor as a shield, to receive the first and last blow. No combination can take place between the creditor and the vendor, under such a ride. The latter, as debtor and warrantee, has every interest to defend the suit, and thereby prevent any circumvention.
    The prosecution, supposing it strictly carried on, according to all the forms prescribed by law, instituted by the corporation against Duplantier is in the nature of a penal action: and cannot be extended, as a punishment, beyond Duplantier, who was the only object of it.
    The defendant, as vendor of the estate to Duplantier, had a privilege, as such, anterior and paramount to that of the plaintiff. Code Civ. 471, art. 75.
    The contract contains an express stipulation, that the plaintiff shall have his recourse against Duplantier alone. No privilege is spoken of. Admitting that one should have attended the claim, if there had been no special stipulation, it is excluded thereby. Expressio unius est exclusio alterius.
    
    
      Moreau, for the plaintiff.
    The plaintiff did not lose his right against Duplantier, by receiving in advance, and as a loan to be ac~ counted for, a sum equal to the value of his work. It was not the intention of the corporation, in making the advance, to discharge Duplantier from his liability, but only to facilitate the undertaker. The debt of Duplantier has not, therefore, been extinguished by the advance so made; for, although the payment of the debt of another may be made by a third person, it is only when the third person uses the name, and pays in discharge of the debtor, that the debt is thereby extinguished. Civ. Code 283, art. 136, 2 Pothier on Oblig. n. 463.
    It was unnecessary, and it would have been vain to attempt, to obtain a judgment against Duplantier. The debt was a liquidated one, resulting from an adjudication, authorized by law. Duplantier having failed, all proceedings against him were suspended, and the plaintiff’s claim was rather on his property, than on his person. The debt was not a personal one : Duplantier was the debtor of it, from the sole circumstance, that he was owner of the estate, burdened with the repairs.
    The present action does not partake of the nature of a penal one. The penal obligation is that which is added to a contract to inforce the performance of it. Civ. Code, 385, art. 126. Thus Duplantier’s obligation, to pay for the repairs done by the plaintiff, was not a penal or accessory obligation, but a principal one. The adjudication made by the competent authority, had the same and no greater effect than a direct contract with the plaintiff. It bound him to pay the price of the adjudication, after the repairs were performed.
    The plaintiff’s privilege on the estate, is paramount to that of the defendant. The order of privileges is not regulated by the date, but by the nature, of the claims to which they are attached. The vendors claim is postponed to that of him who has bestowed his work on the thing sold for its preservation, or for necessary improvements. Pothier, Vente, n. 362, 369. Now, repairs on the road are necessary improvements. If, before his failure, Duplantier had caused a necessary building to be erected on the premises, the defendant, his vendor, would have been bound to satisfy the builder-the plaintiff is precisely in the situation of this builder.
    The privilege is an accessory, which by law attends the principal obligation. Although this was confined to Duplantier, the privilege at- tended it, attached on his property, and must follow it, in whatever hands it passes.
   Mathews, J.

delivered the opinion of the court. The plaintiff and appellant sues for work and labour done on the public road, before the property of the defendant, and claims a privilege on the estate, through which the road passes, having been authorized to make the repairs, under certain municipal regulations.

At the time the work was performed, the estate was in the possession of Duplantier, on whose insolvency, it was transferred by his syndics to the defendant and appellee, the original vendor.

The claim is opposed on several grounds; but being of opinion that the second is completely tenable, viz. the want of a judgment against the original debtor, a possession of the estate at the time the repairs were made, it is useless to investigate any other.

The defendant must be considered as a third possessor-and, admitting the plaintiff's claim to be good, in all other respects, and to carry with it a privilege on the property of the first possessor, in his hands-yet payment cannot be enforced by a seizure and sale of the hypothecated estate, until a fair judgment is obtained against the principal debtor. Civ. Code, 460, art. 43. This has not been done-and, in the opinion of the court, his insolvency is not an excuse for the neglect of it ; for, although the plaintiff, from the failing circumstances in which the debtor was, could not have proceeded directly against him, yet he might have pursued measures to obtain a place on the bilan, and thus have his claim liquidated and closed.

The parish court, having erred in giving judgment finally and conclusively against the plaintiff, it is ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed; and, proceeding to give such a judgment as, in our opinion, ought to have been given in the parish court,

It is ordered, adjudged and decreed, that the plaintiff's petition be dismissed, at his costs.  