
    BARROW vs. KING.
    Eastern Dist.
    
      May, 1837.
    
    APPEAL PROM THE COURT OF THE SECOND JUDICIAL DISTRICT, THE JUDGg THEREOF PRESIDING.
    When there has been no previous demand and notice to the third possessor of mortgaged premises, an order of seizure and sale cannot be maintained.
    This is an injunction suit. The plaintiff alleges he purchased a tract of land from one Richd. King and James Bowie, who obtained the samé from Lemuel Tanner. That Tanner had sued out an order of seizure and sale against the land, he being the third possessor, without making any previous demand or giving him notice thereof, and that the defendant, Richard King,, was carrying it on for Tanner’s benefit. He prays for an injunction to prohibit said executory proceeding, and that it be made perpetual.
    The defendant pleaded a general denial.
    On receiving the evidence, the allegations in the petition were proved. Judgment being for the plaintiff, perpetuating •the injunction, the defendant appealed.
    
      Taylor, for the plaintiff.
    
      J. Slidell and hes, for the appellant.
   Bullard, J.,

delivered the opinion of the court.

The plaintiff and appellee complains that he is disturbed. in the possession of a tract of land, by a seizure made by the sheriff of the parish of Terrebonne, under color of an order of seizure and sale, obtained by one Tanner against King and Bowie. He avers that the proceedings are irregular, that he never had any notice, according to law, and that he is a third possessor of the premises, and can only be proceeded against in the forms regulating the hypothecary action. He further alleges that Richard King, the appellant, one of the original defendants, for whose benefit the proceeding is now carried on against him, is his warrantor, and cannot énforce the pretended mortgage on-the land.

, Where there has been no previous demand thirdTpotsessor of mortgaged der of seizure ])e maintained,

Upon this petition an injunction was issued, staying proceedings on the order of seizure, and the defendant, King, answered by a general denial. The injunction was per-* petuated, and the defendant appealed.

No previous demand of the original debtor, and no notice to the plaintiff, according to law, are shown, and it is clear 1 7 ° 7 7 tne proceédings are irregular. Without inquiring in this case* whether King be precluded from enforcing the mortgage on the land in the hands of Barrow, on the ground of warranty, or whether the exception of warranty can be opposed to him, a question which it is not necessary to settle in this case, we concur in opinion with the court below, that the injunction ought to be made perpetual.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.  