
    
      DELAHOUSSAYE vs, DELAHOUSSAYE & AL,
    
    Appeal from the court of the fifth district—A the judge of the 7th presiding.
    iirivile?ed or mortagee nof obliged to discuss the „fa
    bound by the recitals in an act of sale,
   Mathews, J.

delivered the opinion of court. The plaintiff in this case, after having obtained judgment against his tutor, for the amount or value of his property, which the latter had administered and wasted in his capacity as tutor aforesaid, commenced the present action to obtain a decree of the court below, which should authorise him to enforce his tacit mortgage against the property, now in the possession of several persons, made defendants to this suit, as having been acquired from his tutor, and on which he has a lien to secure the payment of the judgment by him obtained as aforesaid. These latter defendants appeared in court, and one of them pleaded in opposition to the plaintiff’s claim on property by him held and possessed as a purchaser irom the tutor, his right to require of said plaintiff to discuss the property still in the of Balthazar Delahoussaye; and also such as had been sold by the latter subsequent to the sale made to him this defendant. He pointed out, by enumeration, a variety of articles of property, to the number of nineteen, still held by the principal defendant and other persons who derived title from the latter» which, he alleged, ought, according to law, to be discussed, before that which he held could be subjected to the influence of the plaintiff’8 lien. The judgment of the district court ordered only three of the articles of prooerty designated in the answer to be discussed, viz. those pointed out in nos. 1, 6 <fe 12; and the defendant Raymond Frangois being dissatisfied with the decree thus rendered, appealed* The answer of the plaintiff on the appeal, admits the correctness of the judgment rendered in the court below, so far as it relates to the first and last of the numbers above cited, but complains of error in it in relation to the 6th number, according to the order in which they are placed by the answer of the defendant.

The principal questions in the cause arise out of the situation of the property designated in nos. 6, 9 «fe 13. That shewn by no. 6, is an undivided portion of a tract of land owned and possessed by the defendant Balthazar houssaye, in common with his co-heirs, to the successor of his father. The plaintiff relies on the last art. but one of the old code, to free him from the trouble and delay which the discussion of the property suggested by this number» would occasion. The law relied on denies to a plaintiff in execution the right of seizing an undivided portion of a succession belonging to his debtor; but authorises a judgment creditor to cause the estate to be divided, <^*c. To effect such division, legal proceedings would most probably be required on the part of the creditor. In cases where property is thus situated, we are of opinion that a privileged or mortgagee creditor, is not obliged to discuss it-See Pothier, recueil de deux traités sur les hypotheques, pag. 32.

According to this view of the question, which relates to the situation of the property designated in no. 6, we conclude that the judge a quo erred in decreeing that the plaintiff should be compelled to discuss it, &c.

The difficulty in which the property designated by no. 9 is involved, relative to the different rights and claims of the parties now before the court, is suggested by a bill of exceptions to the introduction of oral testimony with regard to the manner in which it Was acquired by the present proprietor and possessor. The act of sale is subsequent to that under which the appellant holds the property by him purchased from B. Delahoussaye; but the person on whom the discussion is required to operate, seeks to release himself from its effects by shewing that he received it as a üatiofi en paiement, in discharge of a privi-ledged debt which the vendor owed to a person whom the purchaser represented; and for this purpose he offered testimonial proof, which was received by the court below, and tot w hich reception the defendant made his exception in due form. The deed purports to have been given in consequence of a sale; and the price paid proves the execution of the act. The appellant contends that the evidence of the witness offered and admitted, to shew that the contract evidenced by the written instrument tvas any thing else than a sale as it purports to be, was in violation of the well known rule of evidence, which prohibits oral testimony to be received in support of facts alleged contrary to the contents of contracts and agreements, reduced to writing, &c. This rule is perhaps without exception, so far as it relates to the rights and claims of the parties them* * I • • * * Tf-⅝ * • selves to the instruments in writing* But it is not so unrelenting in relation to the rights ... ..... . . . . third persons; and in this situation the plain* tiff in the present case must be viewed. We are therefore of opinion that the judge a quo fiid not err in receiving the testimony offered; neither did he err in the effect which, by his final judgment, he seems to have allowed to it.

The slaves pointed out in no. 13, as objects of discussion, are nearly in the same situation as the land proposed by no. 0, just examined. They appear to have been given and received in discharge of a debt due to the vendees* from their tutor, in his capacity as such, and consequently privileged, «£e.

In consequence of the error of the court below, in relation to the property designated by number 6, we are compelled to reverse the judgment of that court.

It is, therefore, ordered, adjudged, ahd decreed, that the judgment of the district court be avoided, reversed, and annulled.* And it is further ordered, and we do hereby order, adjudge, and decree, that the plaintiff and ap-pellee be compelled to discuss the property r 1 r i J designated in the plea of the appellant and defendant by numbers 1 and 12 alone; that is to say, a tract of land of two arpents front with the ordinary depth, situated in the parish of St. Martin, on the east bank of the bayou Teche, and the mulatto man named Louis, <fec. The appellant to pay the costs of this appeal.

Brownson for the plaintiff—Simon for the defendant.  