
    No. 1057.
    John & Charles Chaffe vs. John T. Ludeling.
    1. The plea of discussion, urged by the third possessor in an hypothecary action to enforce a judicial mortgage, is a dilatory exception, and cannot be pleaded; after default, nor in an answer after plea to the merits, and when so pleaded, the same must be disregarded.
    2. Notwithstanding the apparent contradiction in terms between Arts. 333 and 336 of the Revised Code of Practice, the former must prevail, because it evidently embodies the true legislative intent, being the industrious incorporation into the Code of the provision of the Act of 1839; and the omission to qualify the terms of Art. 336, in accordance therewith, • was a manifest inadvertence.
    3. The fact that the price, paid by the third possessor for the property, was applied to the payment of taxes therein, does nob entitle him to subrogation to the lien and privilege of the State and Parish, as against prior mortgage creditors. The pavmenfc of the taxes extinguished them and the liens and privileges by which they were secured; and they no longer exist as a claim ranking that of plaintiffs.
    A PPEAL from the Fifth District Court, Parish of Ouachita. ardson, J. liidh-
    
    
      JBoatner <& Liddell, F. F. Stubbs and T. Stillman, for Plaintiffs and Appellees:
    1. Those persons who derive title to real estate directly from a certain deed are privies thereto, and bound by the recitals therein. Greenleaf, § 23.
    2. One privy to an authentic act can not contradict, by parol evidence, the consideration mentioned in the deed without allegatious of fraud, error or violence. 11 M. 630; 1 La. 240; 4 La. 1; 4 R. 299 j C. C. 2276.
    
      3. Parol evidence is inadmissible to prove that the Sheriff announced other terms, at the sale, than those mentioned in his proces verbal and advertisement. 13 An. 382.
    4. Neither the Sheriff or his deputy, making the sale, can be allowed to testify, contradicting , their official acts. 13 An. 382.
    5. The plea of discussion by the third possessor, in a hypothecary action, comes too late after default, and issue joined. Such an exception is dilatory in its nature, and should be plead in Ivmine litis. 3 It. 57; 11 An. 643; 31 An. 585.
    6. The plea of discussion is waived by going to trial on the merits, without demandinga previous decision on the plea. 13 La. 373; 11 R. 402; 3 An. 222; 4 An. 350; 12 R. 194.
    7. The adjudication completes the sale, and the title is merely the evidence. C. C. 2605; C. P. 695.
    8. One paying taxes is not thereby subrogated to the lien and privilege of the State, as against the mortgagee. 16 An. 132.
    9. Taxes when paid are extinguished, and with them the lien andprivilege of the Slate; they are not debts within the strict sense of the law. 26 An. 697; 28 An 836.
    10. When the purchaser goes into possession, a want of seizure is thereby cured. 33 An. 1043; 4 Otto, 6.
    11. A succession sale only frees the property of mortgages imposed on it by the deceased. 29 An. 385; 9 La. 13; 11 An. 385; 3 R. 5; 8 R. 99.
    12. A monition only cures informalities in sales. R. S. 2370.
    
      John T. Ludeling, in propria persona, and John U. JDmlcgrave, for Defendant and Appellant:
    Discussion not necessarily a dilatory exception. C. P. 715; 7 An. 145; 13 La. 422.
    Dilatory exceptions, not relating to form nor declinatory, may be filedin the answer, since the re-enactment of the Code of Practice of 1870. Art. C. P- 336; 7 La. 197; 7 An. 145 ;■ 13 La. 422; 1 R 108; 32 An. 1143.
    This possessor, in an hypothecary action, has the right to point out other property which is in the possession of the debtor, or which has been sold by him, since the property of the third possessor. O. P. 715. This is not a dilatory exception, when the property pointed out is more than enough to satisfy plaintiffs’ claim. 13 La. 422. Under the general issue any fact may be shown to disprove the allegations of the petition, or to defeat the demand. 31 An. 81, 679; Henn. Digt. Pleading, V. B. Nos. 3 and 13.
    The rule, that the validity of a sale cannot be attacked collaterally, does not apply in a suit, when either plaintiff or defendant sets up the title as a basis of his right. 33 An. 438; 15 La. 59; 2 An. 161; 4%La. 243 ; 3 An. 233; 11 Hart. 632 ; 19An.52; 20 An. 211; 15An.l77; 30 An. 1157; 6R 192.. Sheriff’s return not conclusive. 1 An. 34, 297; 2 An. 846; 6 Rob. 107. Clerks of courts cannot isssue executions or judgments as on a twelve months’ bond. 30 An. 1271, Strother vs. Richardson.
    A sale made under a consent decree, on terms different from those prescribed by law for forced sales, are governed, by the rules relating to ordinary sales, and do not extinguish mortgages or privileges. 3 Án. 195 ; 5 An. 497; 15 An. 326.
    The third possessor, who has employed the price of his purchase to pay the privileges of the State and Parish for taxes on all the property of the debtor, has a right to show that a judicial sale, alleged in the petition to have been made to the plaintiffs, is an absolute nullity, because of an absolute lack of authority in the officer to make the sale, as well as on account of fraud or other illegalities. 30 An. 1157; 33 An. 438.
    Writs of fieri facias must be returned within seventy days. O. P. 642; 30 An. 87. If certified copies'thereof are not taken by the officer before the writ expires, no sale can be made under it. 30 An. 88; 2 La. 277; 11 Rob. 49, 218.
    To make a valid seizure, possession of the property must be taken by the officer. C. P. 650, 657 ; 6 Rob. 102, 345; 2 An. 338, 492, 785, 910 ; 4 An. 371; 6 An. 584.
    The property, at cash sale, must he appraised, and must bring two-thirds of its appraisement. G. P. 675, 680 ; 3 An. 390; 9 Rob. 531. This appraisement cannot be waived by one 4in ^ailing circumstances. 1 An. 299, 340.
    
      .The purchaser, who employs the price of his purchase to pay the back taxes of the delinquent, is subrogated to all the 13.gh.ts of the State and Parish. C. C. Art. 2161; Toul. Yol. YI, 7, p. 119, No. 19, p. 126, No. 103, p. 139, No. 118, p. 146, No. 119, p. 180, No. 138. p. 184, No. 142 ; Marcada Yol. 4, p. 516, No. 672, p. 542, No. 711. Baldwin vs. Thompson et al., 6 La. 475; Millaudon vs. Allard, 2 La. 550; 11 La 51; 2 An. 480; 3 An. 313, 529; 9 An. 247; 12 An. 733.
    If the State hada title to the lands, by virtue of the forfeiture declared bylaw, so has the purchaser subrogated. 31 An. 462, Mouius vs. Bryant; Blackwell Tax Titles, p. 544; 2 N. S. p. 160; Torregano vs. Segura’s Syndic, 33 An. 487; Shannon vs. Lane.
    If the State had no title, but only a pledge and privilege to secure the payment of the back taxes due the State and Parish, with the penalties, interest and charges, then defendant and his vendor have that right. Acts of 1869, Section 80.
    "When the delinquent lists were filed ns required by law, the title of the delinquent owner became vested in the State, amt the creditor, of the owner could not seize and sell the property, unless they first paid the taxes, penalties, interest and charges, due the State and Parish. And after the time fixed for redemption, they could not do so at all, without the consent ol‘ the State. Revised Statute, Section 3147; Acts of 1871, p. 115, Sections 37, 38.
    ^Defendant and his vendor occupy precisely the place of the State, by subrogation. Acts of 1871, page 122, Section 68 ; 2 N. S. 161; Toul. Yol. VII, pp. 126,146,184; Marcada Yol. 4, p. 543.
    In an hypothecary action, when the third possessor has shown that he had employed the pi ice of his purchase to pay the back taxes due by his vendor to the State and Parish, with the consent of the seizing creditors, who released from seizure the tract purchased, for that purpose, and that he had redeemed the lands of his vendor, and paid the Auditor’s fee for certificate of redemption, it will be presumed that theTax Collector, the Recorder and the Auditor, sworn officers of the State, performed their duty, and that the delinquent lists were duly recorded. Hcnn. Digfc., Evidence III, (d) No. 17.
    "When defendant or his vendor paj s the back taxes due to the State and Parish, and redeems the lands of the debtor, with the price of his purchase of part of the debtor’s lands, under agreement with the seizing creditors, and thus enables the creditors to sell the other tract of lands belonging to the debtor, free from the privilege of the State and Parish for the said taxes — all the creditors, who have derived an advantage from the purchase by the defendant or his vendor and the redemption of the lands of the debtor, are estopped from attacking his property — which ho acquired through the State free from mortgages. 31 An. 462; 5 R. 523, 196; 5 An. 108, 368 ; 6 An. 274, 349; 9 An. 528; 12 An. 473 ; 4 An. 293 ; 8 R. 165; 31 An. 680, 81. *
    The plaintiffs, who allege that tlicir debtor’s property has been sold; that the proceeds of the sales have been credited on their judgment, and that there is abalance due on their judgment, must produce evidence to fix definitely the amount of tbe balance duo, if there be any. 7 An. 555.
   Tlie opinion- of the Court was delivered by

Fenner, J.

This is an hypothecary action. The substantial averments of plaintiffs’ petition are : that they are judgment creditors of the late Mrs. Eliza W. Warfield, by reason of a- judgment for $5,000, ■ with 8 per cent, interest from May 3d, 1860, rendered in their favor on March 20th, 1874, and inscribed in the Mortgage Office of Ouachita Parish on the 21st of March, 1874; that said judgment is subject to certain credits, viz: a credit of $95.10, arising from a judicial sale of -certain property of Mrs. Warfield, known as the Bon Air Plantation, under executions issued upon certain judgments against her, of earlier date of rendition and record and, therefore, of superior rank to that of petitioners, at which sale petitioners became the purchasers at the price of $3375.48, of which $3280.38 was appropriated, in satisfaction of said superior claims, and the balance, aforesaid, of $95.10 was credited on petitioners’ judgment; and a further credit of $1934.50, being the price of certain other property sold on September 7th, 1879, at judicial sale, in the bankruptcy of Mrs. Warfield, and bid in at that price by petitioners, which price was retained by them as a credit on their said judgment; that their judgment is subject to no other credits; that at the date of record of their said judgment, Mrs. War-field owned certain immovable property, known as Oak Grove Plantation,” in Ouachita Parish, which the defendant, Ludeling, now possesses and claims to own, and which is subject to their judicial mortgage, and that they know of no other property of defendant in the judgment on which their rights can be enforced ; that execution against judgment debtor has been issued and returned nulla bona; that the notices required by law have been given, and all legal delays have elapsed, and- judgment is asked recognizing their mortgage and decreeing the property to be sold.

No answer having been filed within the legal delay, default was taken against the defendant. He then appeared and set aside the default by filing an answer, in which, after first pleading the general denial, he files a plea or exception of discussion, averring the existence of other property belonging to Mrs. Warfield and duly described, which he claims must be discussed, and avers his readiness to furnish the funds necessary to pay the costs of its discussion. Passing by, for the moment, other defenses, he averred that he purchased from the succession of B. II. Dinkgrave, and called the said succession in warranty, through its administrator, W. H. Dinkgrave.

The warrantor appeared and filed an answer, in which he also set up the plea of discussion.

We will first dispose of the plea of discussion.

That the plea of discussion is a dilatory exception, required to be pleaded in limine and in the manner prescribed by the Code of Practice for such exceptions, has been distinctly ruled by this Court and is a settled rule of practice. Dwight vs. Linton, 3 Rob. 57; State vs. Bradley, 11 An. 643.

The Code of Practice itself defines dilatory exceptions to be, such as do not tend to defeat the action, but only to retard progress ;” Art. 332; and Pothier says: The exception of discussion is of the ■class of dilatory exceptions, since it only tends to put off the action of the creditor until after the time of the discussion, and not to exclude it entirely.” 1 Pothier Ob., Nos. 410, 411.

Prior to 1839, under Articles 333 and 336 of the former Code of Practice, dilatory exceptions might be pleaded in the answer and even after default, as was decided in Magee vs. Dunbar, 10 La., decided in 1837. Thereafter, the legislature passed Act 53 of 1839, which provided, in its 23d Section, “ hereafter no. dilatory exceptions shall be allowed in any case after a judgment by default has been taken, and, in every case, they must be pleaded in limine litis; nor shall such exceptions hereafter be allowed in any answer in any cause.” Since the adoption of this law, no case exists in which such exception has been permitted after default, or in an answer, unless, at least, the exception was pleaded prior to any plea to the merits.

In the Revised Code the above provision of the Act of 1839 is incorporated literally, as part of Art. 333, but by a piece of clumsy carelessness, Art. 336 is left as it formerly stood; so that, in one Article, the Code declares that dilatory exceptions shall not “ hereafter be allowed in any answer in any cause;” while, in the other, it says: “the defendant must plead in his answer all dilatoiy exceptions on which he intends to rely.” This apparent contradiction must be reconciled in such manner as to give effect to the legislative intention, and the history we have given'of the legislation, and the careful incorporation of the provision of the Act of 1839 in the new Code, leave no doubt that it was intended to govern and have effect, and that the omission to qualify the terms of Art. 336 was a transparent oversight. In any event, the objection that the plea was filed after judgment by default, would be fatal to defendant’s pretension, because that clause of Art. 333 is not inconsistent even with Art. 336.

This, as we view it, eliminates from the case all questions as to the right of defendant to require plaintiffs to look to any other property for satisfaction of his debt, before subjecting that of defendant to Ms mortgage. Nor is the case affected by the fact that the title of some of the property formerly belonging to Mrs. Warfield, passed directly to plaintiffs themselves. The title to said property either validly passed to plaintiffs, or it did not. If it did, being a title from judicial sale freeing it from mortgages, the property is clearly not liable for Mrs. Warfield’s debts. If it did not, then the property still belongs to Mrs. Warfield, and, like any other property of hers, could only be subjected under the plea of discussion. The attack, therefore, made upon the title of plaintiffs to “ Bon Air” and other property, has no relevancy to the issues remaining in the case, and must be ilisregarded.

The only serious question left in the case is the claim of defendant and his warrantor, that at the time when Diukgrave bought the Oak Drove plantation from Mrs. Warfield, she owed a large amount of State and Parish taxes on this and other property, for the whole of which the State and Parish liad a lien and privilege upon said plantation, priming the mortgage of plaintiffs and all other mortgages ; that the said Dinkgrave paid said taxes, exceeding in amount the price stipulated in the deed from Mrs. Warfield to himself, as the real consideration of said purchase, and, by reason of said payment, became subrogated to the rights of lien and privilege of the State and Parish, entitled to preference over the claim of plaintiffs.

Referring to the act of sale from Mrs. Warfield to Dinkgrave, we find tlie consideration expressly recited to be “ the sum of $3,782.36 cash to her in hand paid, receipt whereof she hereby acknowledges.”

Defendant having no rights except such as are derived from that deed, is a privy thereto and bound by its recitals equally with Ms author. Greenleaf on Evidence, Sec. 23. The rule is inflexible, as against parties to such acts and their privies, that parol evidence shall not be admitted against or beyond what ife contained in the acts, nor on what may have been said before, or at the time of making them, or since.” C. C. 2276.

The parol evidence offered to prove that the price recited in the act was not paid, as therein stated, and that the real consideration was not so much money paid to her, but was the payment of the taxes referred to by Dinkgrave, was, therefore, inadmissible.

This price was the money of the vendor, Mrs. Warfield, and, if it was employed in the payment of taxes, those taxes wore paid and extinguished with her money, and gave rise to no rights in favor of her vendee or defendant. This was precisely and pointedly decided in Sorapuru vs. Lacroix, 1 La. 373.

If Dinkgrave had paid the taxes before he acquired the property, under no circumstances could he have claim to subrogation.

Póur opérer la subrogation de l’acquéreur dans' les droits des créanciers sans stipulation, il faut qu’il les ait payés depuis son acquisition. Elle n’existerait pas s’il les avait payés auparavant sans stipuler la subrogation.” 7 Tonllier, No.. 143.

If he paid afterwards, in this case, he must have paid as her agent, and with her money.

•But it seems to us plaintiffs have little concern .with these questions. They are not attacking the title of defendant; they are neither parties nor privies to the transactions between Mrs. Warfield and his author, Dinkgrave. They are enforcing their purely legal rights as mortgage creditors, and are entitled to be paid out of the property by preference over all except mortgages or privileges which rank their own. If mortgages or privileges, which once ranked theirs, have been extinguished, by whomsoever or by whatever means, they no longer stand in the way. of plaintiffs’ rights. Now, the fact is, that the taxes, of which defendant now claims the benefit, have been paid, and the liens and privileges securing them have been extinguished. The evidence shows that this was the very object of the payment, and the consideration upon which Oak Grove Plantation was released from the seizure which operated equally upon it and Bon Air. If the liens and privileges were not extinguished, how was it that Bon Air and other property was sold and passed free from such privileges ? But if they were extinguished as to other property, how did they survive as to Oak Grove 9 The fact is, they were blotted out absolutely, and survive in favor of no one and to no extent.

Dinkgrave bought this jn’operty freed from taxes, and subject to the judicial mortgage of plaintiffs, of which the public records gave him due notice. The law informed him that the property would be subject to payment of plaintiffs’ debt, unless paid by Mrs. Warfield, personally, or out of proceeds of other property remaining in her ownership after the sale. So well aware of this was he, that, not content with her warranty, he required and received the additional warranty of a third person, Mrs. Strother. The contingency guarded against now happens, and he must look for his protection to his warrantors.

We, therefore, think that the Judge ad hoe erred in allowing any portion of the taxes.

The amendment asked as to the description of the land, cannot be allowed, since the notices aud delays can only be held to apply to the land described in the petition.

The allegations of defendant’s answers lay no foundation for proof or allowance of improvements, and the claim therefor was properly non-suited, with reserve of his rights to recover in proper action.

The exception of defendant, based on effect of the monition taken out as to the sale in the succession of Dinkgrave, is frivolous, and is not, indeed, urged in the argument.

The'prayer of the curator ad hoc of Mrs. Strother, to amend the judgment by allowing him an additional fee for services in this Court, is evidently invoking at our hands the exercise of original jurisdiction. I-Ie must apply to the lower court.

It is, therefore, ordered, and decreed, that the judgment appealed from bo amended, by striking therefrom that portion which allows the warrantor, succession of Dinkgrave, the amount of $936.20, as taxes paid by him, and directs this amount to be paid by preference out of the proceeds of sale; and that, in all other respects, the said judgment be affirmed, appellant to pay costs of this appeal.  