
    No. 7665.
    Pierre Morere vs. T. L. Preston, Administrator of the Succession of C. C. Porter.
    An order of sale made at the instance of the administrator of the succession of a deceased ’ husband will not be revoked, when an order of seizure and sale was previously issued and executed against tbe widowin her individual capacity as owner of the property.
    The subsequent making of the heirs of the deceased parties without obtaining an order of seizure and sale and effecting an actual or constructive seizure, previous to the rendition, of the order of sale in the mortuary proceedings, will not divest of jurisdiction the couit which gave that order.
    APPEAL from the Second District Court for the Parish of Orleans. Tissot, J.
    6?. Duplantier, for Plaintiff and Appellee :
    When the sheriff has levied a writ of seizure and sale issued by a court of general jurisdiction, his possession of the property is that of the law, and no other tribunal has the jurisdictional power to deprive him of his custody. C. P. Arts. 656, 662, 762; Winn vs. IClgee, 6 B. 100; State vs. Judge 5th Dist. Court, 15 An. 34; Twity vs. Clarke, 14 An. 503; State ex rel. Thompson vs. Judge, 6 An. 548.
    Every court has exclusive control over its own process, so that a court having probate jurisdiction is powerless to inquire into the validity of the order of seizure and sale issued by a court of general jurisdiction, upon the averments of an administrator that the property seized belong* to the succession under his administration. Mock vs. Kennedy, 11 An. 525.
    An order for the probate sale of property in the custody of the sheriff under a writ of seizure and sale previously issued by a court of general jurisdiction, cannot he lawfully carried into execution and must he quashed. The remedy of the succession claiming the property is by intervention and third opposition in the proceedings via executiva. Oger vs. D’Aunoy, 7 B. S. 658; Clement vs. Oakey, 2 B. 90; Minot vs. U. S. Bank, 9 B. 490; Bochereauvs. Bobb, Adm. 27 An. 657; Guilbeauvs. Wiltz, 26 An. 601.
    
      The averments in a petition that the petitioner is a mortgage creditor of the party decedent may perhaps be construed into an implied judicial admission that the property burdened with the mortgage belongs to the deceased. But the bare statement in the petition that the petitioner is a creditor of the deceased, coupled with the allegation that the claim is secured by mortgage bn a designated piece of property, without the slightest reference to the ownership of the property, cannot ho construed as implying the above judicial admission. For it may be quite true that the property subject to the mortgage belongs to another party, non constat the fact that the claim resting upon it may be a personal debt of the deceased.
    
      Merrick & Foster, for Defendant and Appellant:
    A party who is not in possession of an act importing a confession of judgment, and has no actual seizure of property belonging to a succession, under executory process, cannot enjoin the administrator of tbo estate from selling the real estate to pay debts, nor cause the order to be rescinded by the Court. His remedy is via ordinaria. 32 An. 542; 15 An. 636, 637; 25 An. 154; 1 An. 173.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an injunction to arrest an order of sale made in the succession of Porter, and to have it annulled.

From a judgment in favor of plaintiff, the succession has appealed.

The order was rendered on the 31st of May, 1878.

The nullity is claimed on the ground: that it issued for the sale of property in custodia legis for years previous.

The record shows thaton May, 1874, the plaintiff instituted executory proceedings against widow Porter, for the payment of a mortgage note of $1,500, which she had subscribed and secured by mortgage, in January, 1871, on property which she had acquired in her own name in 1803, during the life of her husband; that she enjoined the sale, on the ground that the property belonged to her individually; that the debt claimed had been created and secured by her for the benefit of her husband, and that she was not bound therefor. Her injunction culminated in a judgment against her. The writ being about to be proceeded with, she obtained another injunction, which was maintained by the lower court, but dissolved on appeal.

Tlie seizure had been recorded on May 27th, 1874, under the Act of 1857, the registry amounting to an actual taking of possession.

Considering that it had been judicially established that the property did not belong to Mrs. Porter, but to the succession of her husband, the seizing creditor thought it advisable, in March, 1878, to make his heirs parties, three of whom were of age, and four minors. One of the first was absent, and the latter were represented by their mother, confirmed as tutrix, on February 5th, 1875. The absent heir was represented by a curator ad hoc appointed to him on April 22d, 1878.

It does not appear that any now order for executory process or seizure was made and recorded after the heirs had been made parties.

The making of the heirs parties in 1878 to a proceeding brought in 1874 against one who at the time represented neither the succession nor the heirs, could not and did not give validity to the seizure effected by the registry, which was an absolute nullity.

The consequence is, that as to the creditors of C. C. Porter, represented by the administrator of his succession, the property ordered to be sold was not in custodia legis, and that the Probate Court having acquired jurisdiction over it before any seizure had been effected, the order of sale, was properly rendered. 15 An. 636.

The injunction was illegally granted and should be dissolved.

It is, therefore, ordered and decreed, that the judgment appealed from be annulled and reversed, and it is now ordered, adjudged and decreed, that the injunction herein issued be dissolved, and the prayer therein rejected, reserving the rights of the succession, if any, to damages, by recourse on the bond against principal and surety, and it is further ordered, that plaintiff and appellee pay costs in both Courts.

Levy, J., absent.  