
    Lynch v. Kitchen et al.
    A jundgment of non-suit will not support a plea of res judicata.
    
    Land subject to a mortgage was sold by the mortgagor to defendants, who sold to a* third person, by whom the laud was sold to a fourth, who .was evicted by a sale at the suit of the mortgagee. Plaintiff having acquired at a judicial sale the claim of the last purchaser against his vendor, this vendor subrogated the last purchaser to alibis rights of warranty against defendants, and the last purchaser subrogated the plaintiff to alibis rights of action against his vendor, and against defendants. Held, that plaintiff’s action cannot be defeated on the grounds, that defendants’ vendee had no cause of action against them>until lie was himself injured by eviction, and that he could.not assign a right which he had not. Per Curiam: We see no objection to the subrogafcious under which plaintiff claims; they promote the ends of justice, and tend to prevent a multiplicity of -suits.
    Creditors can exercise all the rights and actions of their debtors, except those reserved in arts. 1986,1987 of the-Civil Code. The reservation does not embrace actions of warranty.
    Where an act of mortgage contains the pact de non alienando it is not necessary that the party in possession should be apprized of the seizure, nor is it necessary that the latter should notify his warrantors, in order to preserve his recourse against them. Per Curiam: The defence which warrantors can make against an action of mortgagees .not such as would in any case release them from their warranty. C. C. 2494.
    
      •One subrognted to the rights of a purchaser who lias been evicted, is entitled to recover from his warrantors any part of the price which the purchaser had paid at the time of his eviction.
    Where a husband joins in an act of sale of real property made by his wife merely for the purpose of authorising her, the purchaser, in case of .eviction, .can recover judgment only against her.
    Appeal from the District-Court of Rapides, King, J.
    
      O. N. Ogden and Thomas, for the the appellant. Flint, Dunbar., Iíyams.and Elgee, for the defendants.
   The judgment of the court was pronounced by

Host, J.

This is ,an action of warranty. The plaintiff having obtained judgment for a portion of his-claim only, against Harriet Kitchen,and her husband jointly, has .appealed. The defendants ask.that the j udg-ment be revet sed, and that if the plaintiff’s .claim is maintained for any a-mount, they-may have judgmentfor the like sum against Philip M. Cuny, their warrantor.

In 1834, Philip M. Cuny mortgaged to the Canal and Banking Company a tract of land and some slaves, to secure .a loan -of 553000. Shortly after -he sold the land to the defendants, who, in 1836, sold to P. J. limiter, who in his turn said to Wm. L. Gray, in 1838, and while in the latter’s possession the land wns, in 1842, bought at sheriff’s sale by the Canal Bank, .under an order of seizure obtained .on the .mortgage given by Philip M. Cuny.. After the sale Wm. L. Gray instituted an action of warranty against his -vendor, Himt&r. Hunter .called in warranty the defendants, -who excepted to the form of action, -and prayed that it might'be dismissed, without requiring them to answer to the merits. The exception was sustained, and the plaintiff having subsequently failed -to appear to prosecute the principal action, .it was dismissed at his -costs. In December, 1842, the plaintiff in the present suit acquired at sheriff’s sale all-the interest, right, title, claim and demand of Wm. L. Gray against P. J. Hunter, in warranty or otherwise, by reason of, or arising from, .a sale .of the laud purchased by the bank, made to him by the said Hunter, on or .about the 23d-of March, 1838. On the day o.f sale, Hunter executed in favor of Gray, ■a deed, subrogating the said .Gray to all his rights and actions of warranty .against the defendants. Subsequently Gray subrogated the plaintiff to all his rights .of action-against Hunter and his vendors.

The defendantsexcepted to .the plaintiff’s action on the ground, that his vendee, Hunter, had no cause of action against them until he was himself injured ■b.y eviction, and .could not assign a right which he had not. They further alleged -that‘there had been a judgment in their favor-on that point in another suit, -which was res judicata between them and .the plaintiff.

We are of opinion that this exception was properly overruled. The main action never went to trial in the case of Gray v. Hunter, and the decree was nothing more than a judgment of non-suit. When the plaintiff failed to appear Hunter could not proceed with the suit, .and orders previously made have not against him the force of the thing adjudged. We see no legal objection to the subrogations under which the plaintiff claims ; they promote the ends of justice, and tend to prevent.a multiplicity of suits. We are not .prepared to sn,y that there was no privity between William L. Gray and P. J. Hunter, by virtue of which the defendants might be reached. Creditors can exercise ail the rights and actions of their debtors, except those reserved in articles 1986 and 1987 of the Civil Code. The .reservation does not embrace.actions of warranty.

The defence on the merits cannot avail the defendant Harriet Kitchen. Tile act of 1824, authorising parish judges to grant orders of seizure in certain cases, does not appear to have been repealed for the parish of Rapides; and the fact that the order issued for oue year’s interest too much, cannot affect the validity of the sale. The defendants’ counsel expressly admit in their brief, that the land was bought by the Canal Bank. It is so stated in the sheriff’s return on the writ, and the agent of the bank swears that the bank now holds it, by virtue of that purchase. Under that evidence, we must take that fact as true, without regal'd to the mode in which the adjudication was made. The act of mortgage under which the eviction took place containing the pact de non alienando, the possessor was not necessarily apprised of the seizure, and.could not be required to give notice of it to the defendants; if he had done so, the defence which warrantors can make against an action of mortgage is not such as would in any case release them from the waranty. Civil Code, art 2494. Carter v. Caldwell, 15 La. 472.

The defendants have asked that if judgment be rendered against either of them, they may he authorised to satisfy it by returning the land. It is proved that William L. Gray has ceased to occupy the land, since the adjudication to the Canal Bank. The eviction is .complete, and the rights of the parties are .fixed. Had the land been tendered to the plaintiff, we eould not couapel him to accept it. But it is proved to be still the property of tho bank, and the application of the defendants has nothing to rest upon. William L. Gray has •been evicted, and, under the decision in Carter v. Caldwell, which we believe to be correct, his assingnor is entitled to recover any portion of the price which Gray had paid at the time of the eviction.

Tho act of sale from Hunter to Gray establishes the fact that the latter paid S3,258, cash; nothing in the record shows the balance of the price to have been paid, and no damages are proved, except those due in the shape of interest on the price since the eviction.

The defendant, Harriet Kitchen,.alone purchased the land from P. M. Cuny; her husband had no title to it, and could convey none; he joined in the act of sale to Hunter to authorise his wife, and the judgment should have been rendered against the wife alone. We.are of opinion that she is entitled to the judgment claimed against her vendor, Philip M. Cuny.

It is ordered that the judgment in .this case be reversed; and that there be judgment in favor of the plaintiff against the defendant, Harriet Kitchen, wife of Ccesar J. Cuny, for the sum of S3,258, with legal interest from the 6th day of August, 1842, till paid, and costs in both courts. It is -further ordered that Harriet Kitchen recover from Philip M. Cuny the sum of '353,258, with legal interest from the 6th day of August, 1842, till paid, and .costs in both courts. It isfurther ordered that there be judgmentin favor of Casar J. Cuny.  