
    No. 1036.
    Sosthene Roman v. J. Denny et als.
    Where a fieri facias, under which property has been seized, is returned not satisfied before the pro* perty is sold, the proceeding under the writ will be considered to have, been abandoned, and the seizing creditor cannot claim the benefit of any privilege which the seizure gave him on the fruits of the property seized.
    To enable the plaintiff to sell the property, an alias fieri facias must be issued, and a new seizure be made and new notice be given.
    The fruits or revenues of real estate which accrue and are separated and gathered from the land prior to the date of the seizure, cannot be sold by the sheriff in satisfaction of the writ in his hands; only such fruits as are produced or gathered since the seizure was made inure to the benefit of the seizing creditor. O. C. 457.
    A PPEAL from the Second District Court of New Orleans, Thomas, J.
    
      O. Boselius and Alfred Philips, for appellants.
    
      Fellows & Mills, Buchanan & Gilmore, for appellees.
    
      Brief of Boselius & Philips, for appellants.
    —On the 24th of May, 1861, the plaintiff applied for and obtained an order of seizure and sale, founded on the vendor’s privilege and special mortgage on a sugar plantation and its appurtenances, which he had sold to the defendants. ■ After the seizure had been made, one of the defendants, Jacob Denny, applied for and obtained a suspensive appeal, from the order of seizure and sale. In consequence of the civil war, the case remained undecided in the Supreme Court until the 12th June, 1865, when the judgment was affirmed. An alias order of seizure and sale having been taken out, a controversy arose in relation to a quantity of sugar, molasses, etc., found on the plantation, which was claimed by Forsyth and others, who allege that they were lessees of the property under Denny. By consent of parties these products were consigned to the firm of Eugene Rochereau & Co., to be sold, and the proceeds held subject to the decision of the Court.
    On the 6th January, 1866, the plantation was adjudicated by the sheriff, under the alias order of seizure and sale, to the plaintiff in the suit.
    The alleged lessees intervened, and claimed the proceeds of the sale of the sugar, molasses, etc., sold by Rochereau & Co.
    
      Judgment, having been rendered in their favor by the District Court, the plaintiffs .appealed.
    These products were raised on the plantation since the seizure in 1861; and it is respectfully submitted that the solution of the question is found in Article 457 of 'the Code, which provides, that “ the fruits of an immovable gathered or produced since it was under seizure, are considered'as making part thereof, and inure to the benefit of the person making the seizure.” The seizure was never abandoned; and the suspensive appeal left the matter in statu quo during its pendency. Its final result depended on the judgment of the Supreme Court; and that judgment having been in affirmance of the order of seizure and sale, the parties occupy the same position as if no .appeal had been taken. It is said that the writ was returned by the sheriff, and that thereby the seizure was abandoned. But no such conclusion can fairly be drawn from that fact. The execution of the writ yvas arrested by the. suspensive appeal, during a period of five years, and the officer had to make a return to the Court for the purpose of showing why he had not executed its mandate.
    We contend, in the second place, that the intervenors have not established their claim to this fund; first,. because Denny, their pretended lessor, had no right to give, a lease to them after the property was under seizure; and secondly, because their pretended lease is under private signature, and has no, date, so far as third persons are concerned, until it was filed in this sqit. ,
    
      jBrief of Fellows & Mills, Buchanan <& Gilmore, for appellees.
    —The legal question, on the answer'to which this cause mainly turns, is the date of the seizure under which the mortgaged property of defendants was sold.
    The appellees! ihterveñors, contend—and with whom the Judge a quo agrees, that the actual seizure was made on the 16th November, 1865. The appellants insist that it was on the 24th of May, 1861.
    The importance of the question is.this: If the seizure be considered as of l6th‘ November, 1865, then the crop and fruits of the plantation gathered before the seizure, though subsequent to 24th May, 1861, are not covered’ by the seizure.
    ■ If the seizure, under which the property was sold, be held to be that of May'24th, 1861', as contended "for by appellants, then the said fruits and revénues are legally covered by the seizure.
    The record shows'the following .facts: On 25 th May, 1861, a writ of seizure and sale issued.
    On 12th June, 1861, the plantation was seized.
    On 26th July, 1861, tlie writ was arrested by a suspensive appeal.
    On 13th July', 1855, after decision by Supreme Court, an alias writ of seizure and sale was issued.
    ■On 2d August, 1865! the' sheriff again seized the plantation. His return statés: Received the within writ of seizure and sale on the 17th July, 1865.. Oh the 2d. of August, same year, seized the property, as will be fully shown by the .annexed notice of seizure. ”
    “And on the 23d August, same year, received the annexed order from Headquarters, Military Department, postponing and suspending all proceedings; wherefore, I return said writ of seizure and sale to this Honorable Court not satisfied. August 24th, 1865.” - ;
    On the 16th November, 1865, another alias writ of seizure and sale was received by the sheriff, who, in his return, says: ■'“ Received the within writ of seizure and sale on the 16th November, 1865. On the same day I seized and took into my possession the' within named and described property.”
    On this statement of facts, as established by the record, it is submitted that the ruling of the District Court is correct in fixing the date of the actual seizure under which the property whs sold, as the' 16th November, 1865.
    A valid seizure is an act of corporeal possession by the' sheriff. - Its duration depends upon the time such possession is held, by the sheriff. It has no effect until such possession is acquired.' ':It ceases with such possession. That possession of the sheriff rests Only on the writ. When he returned the writ on the 25th of August, 1865, the seizure and possession of the sheriff necessarily ceased. (See Black v. Catlett,-'1 Rób. 540.) Hence, while it be true that “ the fruits of ah. immovable,' gathered or produced since it was under seizure, are considered ¿s making a part thereof, and inure to the benefit of the person making the seizure, ” yet, as the crops and fruits claimed in the case-at bar'were gathered previous to the 16th of November, 1865,’the’ date " of the Wctiial ,seizu'i'e''uhder which the property was sold, such crops and fruits, gathered before that time, are not affected by such seizure.
    ' The 456th Article of the Code covers the facts: “ As soon as the crop is cut down, and the fruits gathered or the tree? cut down, .although not yet carried off, they are movables. ”
    ■ If corroborative proof of the correctness of the opinion of the District Judge were required, it could be found in the record,
    1st. The continuous actual possession of the plantation by, Denny and the Forsyths, from the date of the suspensive appeal until the seizure on .the 16th of November, 1865, shows that the sheriff was not in possession of the mortgaged property.
    The fact of the subsequent seizure by the sheriff, shows abandonment of the previous seizures.
    The agreement between the widow and heirs of Roman and the Forsyths, on the 29th of April, 1863, shows that said widow and heirs did' not consider the plantation to be then under seizure, for it'recites “that in case the Magnolia plantation is seized under the legal process, ” etc., said Roman “will keep said J. & C. Forsyth in possession as keepers or otherwise,” clearly admitting a previous possession of the Forsyths.
    The judgment of the Supreme Court decrees: “ It is ordered, adjudged and decreed, that the order of seizure and sale be affirmed, and that the sheriff seize and sell the property therein described in the order, except the negroes therein mentioned.” Why should a new seizure have been ordered, if the original seizure had been considered in force 1 f
    ■ Again, the original seizure in May, 1861, was clearly illegal, for it was made previous to notification of parties defendant. See record, and cases of Stale v. Judge of Second District Court of New. Orleans-—On Relation of 
      
      Jacob Denny, 16 An. 390; and lioman v. Denny, 17 An. 126; McDonogh v.Fost, l-Rob.,297.. 14 An. 105.
   HowBnp,.,J.

This contest • arises under the 457th Article C. C., which provides, that “ the fruits of an immovable gathered or produced since it was under seizure, are considered as maldng part thereof, and inure to the benefit of the-.person making the seizure;” and the question to be de,termine.d-.is:-;atwhat date-th^ seizure, under which the mortgaged property .of defendants was actually made. The appellants, representatives of plaintiff, contend that it was made on 24th May, 1861; while the appellees, interv.enors and lessees of the property, insist that it was made on 16th November,'-1865. .

.-T-he-'rec.ord shows the following,..facts: ■ On 25th May, 1861, a writ of-seizure and sale issued; on-12th June following, the sheriff of the parish of St. James seized the plantation, and on 26th July, same year, the writ was; arrested by a, suspensive appeal, allowed upon a mandamus from the Supreme Court, which - issued on. the ground that no legal seizure had-been, made.; After which a rule was taken by two of the defendants to obtain possession-from the sheriff, which on 14th January, 1862, was made absolute,, on.the ground that the seizure was illegal and null, from which ruling no appeal.has been taken. On the appeal in the cause, this Court in 1865, affirmed.the judgment of seizure and sale, and ordered the sheriff to seize and sell the property described in the order. An alias writ issued on 13th July, 1865, under which the sheriff seized the property on 2d August following, and on the 24th same month, he returned the said writ not satisfied, in consequence of a military order suspending all proceedings. Aud on the 16th November, 1865, .another alias writ was received by the sheriff, who, in his return, says: “Received the within writ of seizure and sale on the.l6th-November, 1865. On the same day, I seized and took into my possession the within named and described property.” Under this writ the property was sold. ■ It also appears that Denny leased the said plantation to J. & C. Forsyth, intervenors, for two years, beginning on 2d January, 1865, while the appeal was pending.-

From this statement of facts, it is manifest that the District Court-did not err in fixing the 16th November, 1865, as the date of the actual seizure, under which-the property was sold; and as the fruits in controversy were gathered prior to that date, they were properly awarded to the intervenors, whose right to them seems to be fully established.

. We think the record shows that the sheriff did not have possession after the judgment on the rule in January, 1862, ordering the defendants to be ■ put in possession, until he again seized in August, 1865, when he again abandoned possession and seizure, by returning the writ unsatisfied. 1 R. 540.

The appellees have asked an amendment of the judgment, so as to allow them the value of other property claimed by them, and not included in the proceeds of the crop. -This claim is for one-half the value of a sawmill on the place when rented- by the Forsyths, a railway and cars put thereon by them, lumber, cord-wood and corn, amounting to $11,026, ' and it seems not to have'received any consideration in the action'óf the District Judge, further than in reserving intervenors’ rights to all damages incurred.

As the evidence, on this point, is not altogether satisfactory, and counsel for appellees have not referred to the subject in their brief, we will not disturb the judgment in this respect.

It is therefore ordered that the judgment appealed from be affirmed, with costs.  