
    No. 8403.
    J. C. Morris vs. Cain’s Executors et al.
    Where the property of a deceased, incumbered wfrth mortgages, is seized and sold to pay tho debt, and realizes much more than the claim of the seizing creditor, but not enough to ° n pay him, together with anterior, concurrent and subsequent mortgages or incumbrances, and the whole price of adjudication is not paid in court, but is retained by the adjudicatee, the executors have no right to ask that the entire price of sale be paid to them, for distribution in the succession, by an account, on the ground that the estate is insolvent and the claims are conflicting.
    The purchaser of such property has a right to clear it from incumbrances, by an action against all concerned in them, upon payment of the proceeds under a final judgment adjusting their rights and ranks.
    A proceeding termed an intervention, for which tho effect of an interpleader is claimod, is' irregular.
    The court is without authority to order the price of adjudication to be deposited in a named bank, and the notification of the petition to all concerned, by advertisement or publication, during a stated time in a designated newspaper. The proceedings must be carried on by citation, actually or constructively served..
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J., acting in place of Houston, J., absent.
    
      Miller, Finney & Miller, for Canal Bank, Appellee:
    When the mortgage creditor, With the act containing the ‘pact de non alienando, seizes and sells the mortgaged property under the process of the ordinary court, the administrator of the mortgage debtor has no right to demand that the sheriff or the purchaser shall pay to him the proceeds of the mortgaged property. See C. P. Arts. 683 et seq.; 16 La. p. 170 ,? 5 An. p. 306; 24 An. 381.
    The amount accruing to the seizing creditor, under such seizure and sale, the sheriff must pay over to the seizing'creditor. Ibid.
    When property is seized and sold under concurrent mortgages, the purchaser must retain in his hands the amounts accruing to the concurrent mortgage creditors, who have placed no writs in the sheriff’s hands. The sheriff cannot'receive such amounts nor raise the mortgages of such creditors. Ibid.
    When property thus seized and sold is burdened with a mortgage preferred to that under which the property was sold, the purchaser retains the amount of that mortgage in his hands. If privileges are claimed on the property, the law provides how they shall bo asserted, and the purchaser relieved. There is no necessity for an interpleader to determine what the purchaser shall do in such cases. The law provides amply for the purchaser’s safety, in permitting him to retain in his hands the prior mortgage, and by compelling those who claim privileges to file third oppositions. 1 An. 204 ? (J. F. 683.
    
      T, Gilmore & Sons, for Plaintiff and Appellant, from ex parte order;
    I,
    On the Appeal of the Execotohs*
    1. The light of the mortgagee to proceed against the executors of the mortgagor for tho foreclosure of the mortgage, is indisputable. Bouguille vs. Faille, 1 A. 204; Dupuy vs. Remiss, 2 A. 509; Nichols vs. Grice, 6 A. 446? McCalop vs. Fluker’s Heirs, 12 A. 551? Succession of Wilson, 12 A. 591; Erwin vs. Lowry, 7 How. 172; Randolph vs. Chapman, 21 A. 486; Durand vs. Delahonsaye, 28 A. 622.
    
      t. The executors of the mortgagor cannot compel the sheriff to pay over to them, for distribution, the money made on execution against them, , .
    
      II.
    On the Appeal of Plaintiff from the Order of August 9th, 1881.
    1.The sheriff has no right to require from the purchásér of mortgaged property more than the amount of the writ in his hands.* Scott vs. Eeatherstonej 5 A. 313; Johnson vs. Duncan, 24 A. 381; Hibernia National Hank vs. Smith, 27 A. GO; Quertier & Co. vs. Succession of Hille,,18 A. 65; Hacas vs. Hernandez, 31 A. 86 * Noble vs,,Cooper, 7 R. 44; Pepper vs. Dunlap, 16 L. 170; Conery vs. Holmes, 18 A. 641; Howard’y¡¡L Smith, 29 A 129.
    
      % The court has no right to turn plaintiff in execution over to a fund in oourt, or to involve him in a concursus; it has no power over the mortgage. .The mode 'Of proceeding is .prescribed by Arts. 706-7-8-9, of the Code of Practice, and by decisions of the Supreme Court in numerous oases. Scott vs. Eeathorstone, 5 A. 313; Johnson vs. Duncan, 24 A. 381; Hibernia National Hank, 27 A. 60.
    III.
    The suit brought by Wiltz, Public Administrator, oan, in nowise, affeotthe oaso at bar.
    
      Breaux é Hall, for Public Administrator, Appellant^
    1. Whore a party is threatened with eviction, ho is authorized to retain the purchase price. C. C. 2557 ; 26 A. 147. . ....
    2. Where a contest arises as to the validity of the mortgage, on which seizure and sale was obtained aDd sale made, and a consequent change of the destination of the purchase price, the case is similar in principié to one of eviction, and the purchaser must hold the price, to await the final determination. • • . » ••
    3. This right arises to the purohasor to protect him against loss; and to the rightful claimant to assure him payment on the property itself.
    4. Where there are claims, either anterior or concurrent, the purohasor is hound to hold purchase price to meet these; payment to a sheriff will not release the property. C. P. 705.'
    
      J3. JEL Moise, for Moses Lobo & Co., Tntervenors:
    A.
    1. Executory proceedings on a special mortgage oan he issued by a court of ordinary jurisdiction. .
    2. The fact of there being conflicting privileges, mortgages, etc., on the property seized and sold in executory process, does not ontitle the executors of the mortgagor to the prioe of adjudication, to be’distributed by them. 1 A. 204, 206.
    3. Seizure and sale under executory process divests the executors of possession. 12 A. 591, 592; 32 A. 323.
    B.
    1. A claim to proceeds of a sale ratifies tbo salé;1
    2. A olaim that the mortgage, undórVhioh á sate of succession property is sold, is a fraudulent simulation, where the order for* executory process has not been appealed from or enjoined, is a olaim in effeot that the prioe realized is the money of the succession.
    (a) • Suclra olaim is tb'annul the evidence on which the court acted, not the action the court took. ‘
    (b) Such a claim, if proved to he true, does not nullify the sale, as against innocent third persons, without actual notice.
    (c) The reversal of a judgment on a devolutive appeal will not injure purchasers of property under the fi. fa., if the proceedings he otherwise regular. 5 N. S. 214; 16 L 440; 2 A. 211.
    
      (cl) There must be fraud in the purchaser, or actual knowledge of fraud, to affect his title. 26 A. 30. ,
    
      (e) Though the mortgage be attacked as a simulation, and issue joined before the sale, title will pass to the purchaser if lie be ’an innocent third person without actual notice. 6 A. 462.
    (/) Such a suit is not lis pendens (notice to the world,) as the thing in controversy has not been purchased — the thing claimed by the claimant has not been purchased. C. C, 2453,. [2428.]’
    
      
      {g) At common law the doctrine is the same as that in our Code. The subject matter of the • litigation-must be purchased. 9 Paige, 512; 1 Harp. Eq. 224; 1 McCord’s Oh. Pep. 264 • 7 Md. 537..
    (h) A claim that a debt and mortgage are simulated as to executory process under the mortgage, is, if recognized by the court, a judgment that the mortgagee is either no creditor at all, or nob a preferred creditor of the succession.
    (i) The claimant is in the same position as he would be had he gained an opposition to the executor’s account allowing a creditor a preference or privilege.
    O’) Such a claimant does not claim the proceeds as his, biit that they are the succession’s, and is therefore not estopped from .setting up the simulation of- the mortgage, though he shares in the proceeds of the sale'thereunder.
    (A) He occupies the position of a>creditor who seizes the fund as his debtor’s. 29 A. 274,275.
    
      (l) The fuxul derived from a sale under executory process must he distributed by the court which sold the property.
    
      (m) A change of forum under these circumstances does not change the law or its principles:
    0.
    
      (a) Concurrent mortgagees may sue the purchaser at a foreclosure for the amount of their 'notes. 1& L. 163; 2 A. 306. • ’
    (0) The sheriff can only receive what his writ calls for, and no more — if paid more, the sheriff is trusted personally. 2 it. 214. " •
    (c) Where the price of adjudication is not sufficient to pay all the-concurrent mortgage notes, the purchaser must pay tlie^í'o rata share of the seizing creditor to-the sheriff, and retain the joro rata share of the holders of the other notes. 24 A. 381.* ‘
    ‘ B.
    («) Where’it is impossible to tell, without judicial investigation, wliafc proportion the purchaser must pay and what retain, the law will not force the purchaser to be judge at his peril. '
    (5) Where the purchaser does not know to whom to pay the balance in his hands, he will not he forced to decide’at his peril; he has a right to institute an action against the claimants, and have the court decide between them. 7 B. 398. ’
    (e) The same remedy is allowed a sheriff if the claimants will not take steps to test their fight to a fund in his hands. 1 A. 144. * *
    (<2) * The remedy allowed to these two, when in doubt-, is, under similar circumstances, also allowed the purchaser.
    
      (e) Eor the seizing creditor cannot urge' a reasonable objection against our doing, when in doubt, what these others could do. '
    (/) ‘ Where a party holds money, to which different parties lay claim, his remedy is to pay" ' the money into court. 6 A. 439.
    E.
    FIRST.
    Where, from the peculiar circumstarices of a case*, the^ textual provisions of our C. P» give no, action, the courts will give one ex necessitate rei, to prevent injury to an innocent party,' and prevent a failure of justice.
    SECOND.
    In giving this remedy, the court will look to other systems of other States and follow their mode of granting relief. Louisiana courts have actually borrowed.from the common law.
    THIRD.
    The proceeding taken in this case is identical with the one granted in chancery under similar circumstances,
    FOURTH,
    When there is no express law to govern a strange and peculiar case of judicial sales, the court . .will look to analogous cases-in conventional sales, and when the faots are very similar, be tguided by the analogous provisions of the Code, and a similar remedy for relief will be granted, :
    
      GENERAL DOCTRINES.
    1. Laws are generally either statutory rights or legislative recognitions of inherent rights.
    2. Legislative recognition of a right is not absolutely neoessary to give a right.
    3. As it is impossible to specify all rights, it is impossible to specify all remedies. Courts will enforce the one by supplying an “ adequate ” remedy whore the law has failed.
    4. The Constitution and the Codes reoognizo the foregoing. Const. 1879, Art. 13 ; C. C. 21 ; ■ C. P.130.
    
      First, (a) Ho man can be injured beoauso the C. P. docs not give an aotion. The Court will give one unless it be prohibited. 12 A. 588.
    (5) The C. P. is not exclusivo of all other remedies, where a party does not know how to divide among many claimants a fund, we oan cite them all in court and let them oontest their rights contradictorily, even though the C. P. does not mention the aotion. 2 A. 987.
    (c) The fact that an aotion is not mentioned in the O. P. does not prevent the Court’s recognition of it whore justioe is served. 27 A. 138.
    (d) Humerous claimants to a fund in small amounts — many suing and others threatening suit — trustee has the right to enjoin the suits, and parties from bringing suits, and file one aocount for all, although no suoh aotion is mentioned in C. P. 31 A. 309.
    Second. («) Our courts, while not hound by technicalities of foreign systems, may s.till resort to them when our law is silent. 16 L. 395.
    (I») Under C. C. 21, when our own law does not provide for an emergency, chancery praotice will,be resorted to. 1 A. 138.
    (c) Imperative mandate to judge to proceed, when there is no law, chancery practice adopted. 3 A. 177,182; 5 A. 740 ; 7 A. 287; 2 A. 87.
    Third. * (a) Interpleader — our remedy — our law giving none — it is the ohancery remedy under facts similar to the case at bar. Wait’s Actions and Defenses, Yol. 4, p. 149. ,
    (6) A mere stakeholder, having no interest save his own protection, has a right to force olaimants to interplead and oontest contradictorily. 2 Yes. «T. It. 109; 15 id. 245; 11 Sim. 147.
    (c) Stakeholder not obliged to exercise his judgment. 2 Edw. Ch. 647.
    
      id) Stakeholder need not await a suit. 30 N. H, 363 ? 6 Johns Ch. 44.
    (e) When stakeholder files his interpleader, he must deposit or offer to deposit the-fund. 1 Cow. 691, 30H.H.354; 20 Tex. 399; 61 H. Y. [16 Sich], 264, 268j 2 Eeich [S. G] 291.
    .(/) Ignorance or doubt as to the respectivo rights of claimants, warrants an interpleader. 3 Barb. Ch. 391 • 11 Ga. 103.
    
      (g) Where a party does not claim, but will not assent to payment, a proper party to inter-pleader. 5 Hare, 314.
    
      Fourth, (a) Analogous provision of our Code will govern where our law is silent. 33 A. 470.
    Conventional sales give light to deposit price where any claim is disturbing or will disturb purebaser. C. C. 2557 [2535], 2558 [2536], 2559 [2537J.
    
      F.
    
    GENERAL CONCLUSION.
    Whore a purchaser at a judicial sale is harassed by concurrent mortgagees and privileged creditors of various kinds — where he neither knows who to pay or how much to pay each one, and is a party to a suit seeking to declare all the mortgages a fraudulent simulation — and the mortgagor being dead, the fund must he distributed in the court which issued the order of executory process, an intervention setting forth all the facts, and calling upon the parties to come into court and contest their rights; and he tenders the whole amouut of his hid to the court, and the court accepts the tender, the proceeding is proper and just and allowed by the law of the laud.
    
      Braughn, Bucle & Dinlcdspid, W. O. Hart, for Defendants and Appellants:
    1. Where property of a deceased debtor is sold under an ordinary mortgage, and the funds arising from the sale are insufficient to pay all claims thereon, and the succession of .the debtor is in course of administration, the funds should be distributed by the executors.
    
      2. Particularly is this the case where there are privileges priming the mortgage under which the sale is made, and where the sale is for an amount exceeding plaintiff’s claim. 30 A. 323.
    3. Where the mortgage, under which the sale is made, is attacked in a direct action, to which the holder of the note is a party, hut without injunction, the funds arising from the sale must go to the succession.
    <7. McConnell, H. li. Upton, for D. Roos, H. Roos, and Meyers, . Appellants:
    Í. A creditor claiming a preference by mortgage or privilege, when called upon, is bound to plead. The pendency of a suit in which the validity of his debt, mortgage or privilege is involved, would be a good plea. It would arrest the .distribution. Bank of Louisiana vs. Delery, 2 An. 650.
    2. Where property has been sold under execution to pay mortgage debts, the mortgages upon the property to which the price was to be applied are extinguished, as far as the property is concerned, and the rights of the parties are transferred to the funds. 7 A. 123; '8 A. 505; 13 A. 559; Eillastre vs. St. Amand, 32 A. 354, 355.
    3. In the instant case, as there can be no distribution of the fund, it should be turned over by the purchaser to the executors, to be by them in due course of administration, paid to the parties who may be adjudged entitled thereto.
   The opinion of the Court was delivered by

Bermudez, C. J.

Two questions only are presented in tbis apparently complicated case. They are :

1. Are the defendants entitled to receive the proceeds of sale realized in this suit,‘to distribute them, by an account in the succession of the deceased, which they represent.

2. Has a purchaser of real estate at the judicial sale made in this case, the right to proceed, as he has done, with a view to clear the property acquired by him, from the encumbrances which burden it.

From a judgment dismissing the rule of the executors for the proceeds, those officials have appealed. From the ex parte order and rule, initiating proceedings contemplating the ultimate cancellation of inscriptions against the property, the plaintiff has appealed. His right to do so is disputed by no one, and may be considered as admitted by the tacit acquiescence of those concerned in resisting it. '

.1.

The record shows that L. B. Cain, in 1878, in order to secure the. payment of a number of notes of his, each for $5,000, payable at one and two years, amounting, in the aggregate to $100,000, mortgaged in favor of Henry Roos, two pieces of real estate belonging to him, situate .in this city. It is immaterial to state to whom those notes afterwards passed and how a portion of them, was, by consent between the holder of another portion, given a priority.

It is enough to say that the plaintiff, having become the owner of •six of the notes, in favor of which a preference had been granted, and remaining “unpaid, instituted proceedings via exeeativa, to satisfy his claim, which was for $30,000, with interest, attorney’s fees, costs, etc.

■ At the sheriff’s sale, the two pieces of real estate were adjudicated to different purchasers. One was bid off to Lobe & Co. for $67,000, and the other to M. Prank, for $27,550, together $0-1,550. The former paid $10,000 and'the latter $5,000 to the sheriff, and both retained the balance of the price of adjudication.

■ Some time after the sale, the executors of Cain, defendants in this suit, took a rule-on the plain tiff,the purchasers and the sheriff, to show cause why the entire'amorint of the sales should not' be paid over to them, to be distributed by them in the mortuary proceedings, on the grounds: that the succession of Cain was thoroughly insolvent, and that the claims, mortgages, liens, privileges, etc., against the proceed» of sale, being of a conflicting character, it was absolutely necessary that the funds should be distributed in that mode.

The sheriff, on the suggestion that P. S. Wiltz, as the representative of the succession of one Weil, claiming to be a mortgage creditor, had instituted proceedings to have all the notes and mortgages declared null and.of no effect, made him a party to the proceedings. Lobe & Co., who had purchased one of the pieces of property, next took a rule against .the succession of Weil, against the executors, widow Cain, individually, besides* H. Roos, the .original mortgagee, the New Orleans Canal & Banking Company, the plaintiff, the slieriff, and the recorder, of mortgages, to show cause why, on payment of the price of adjudication, the inscriptions against the property should not be cancelled and erased and a clear title be given to them. . 11

The executors acquiesced in this rul.e, provided the payment was made to them. The plaintiff excepted .to the proceeding by rule; Wiltz, administrator, too, likewise objected to the form. Mr. Frank, the other purchaser, made no appearance.

The rule taken by Lobe & Co. was, discontinued, and will not be further considered. It provoked the accomplishment of the object for which it is said that it was taken.

After trial of the rule of the executors, the Court discharged it without prejudice to the right of the executors, to claim out "of the proceeds of'sale, contradictorily with the parties in-interest, the debts recognized by law as privileged, and outranking the' mortgage sued. on. From the entire ruling the executors have appealed.

' It is clear, under the settled jurisprudence of this State, that the plaintiff had-a right to proceed, via exeeutiva, notwithstanding the death of L. B. Cain, and to do so contradictorily with his executors. 1 A. 204 ; 2 A. 509; 6-A. 446; 12 A. 551, 501-.*..: If' he had that right, he possesses also that of having the writ in his favor executed, not only by the sale of the property mortgaged to secure the payment" of his notes, but also by the application of the proceeds of sale to that payment, to the extent to which he had a right to participate in them, the notes held by him being secured concurrently with others, on the same real estate and by the .same act of mortgage. '

It is another well settled principle, that a purchaser at a judicial sale made to satisfy a writ, is not bound to pay to the sheriff, whatever the price of adjudication may be, an amount exceeding that called for by the writ; that if he assume to do so, creditors entitled to a mortgage or privilege, cannot-be thereby deprived, of their security; that he constitutes the sheriff individually his agent, and would have no recourse against his surety in case of a diversion of funds. 2 R. 214; 5 A. 313; 24 A. 381; 27 A. 60; 18 A. 65; 31 A. 86; 7 R. 44; 16 L.170; 18 A. 641; 29 A. 120.

The retention of the surplus of the writ by the purchasers, produces a right or claim in favor of the creditors who may be entitled to be. paid out of that surplus. It is only' by paying them, that he can discharge himself from what responsibility he may have incurred, and. release the property from the encumbrances .upon it. By paying the sheriff, who is the legal agent of the seizing creditor, he pays the latter and thus liberates both himself and the property to the extent of the. creditor’s rights' against it. From • no possible standpoint, can it be claimed that the executors can pretend to receive any portionnof the price of adjudication in this case, whem-it is apparent, that it would be. entirely absorbed by the creditors of .the deceased, whose titles have been duly inscribed;. From the moment that the,seizure was effected,* they were divested of the right of possession; from the instant that the* sale took place, they ceased — and with them the succession of Cain — to have any right of ownership in the. real estate adjudicated under the' writ. The case would be different, if after the payment, of the seizing creditor and retaining an amount sufficient to pay anterior, concurrent and subsequent mortgage and privilege creditors, there remained ..a balance of the price of adjudication; but it would be only to such, balance that the executors could raise their claim. C. P. 683, et seq., also 707; 16 L. 170; 5 A. 306; 24 A. 381; 30 A. 323; 32 A. 325.

The court.which, was first seized of jurisdiction, which issued the, writ under which the .property was sold, has the exclusive right of: distributing the proceeds of sale, paid to the sheriff in satisfaction' of the writ in his hand. C. P. 130; 15 A. 636.

We do not consider that, in reviewing the judgment dismissing the executors’ rule, we are called upon to determine ■ any other question than that of the right of- the executors to receive the proceeds of the sales. We have no concur sus before us, and no prayer for an amend-, ment of the judgment, which, as far as reviewed, being correct, must be affirmed with costs.

II.

The next question presented, involves the right of the purchasers, Lobe & Co., to proceed, as they have done, to cancel the claims and mortgages securing the same, against the property adjudicated to them.

The petition presented by them is termed an intervention, and was filed after the adjudication. It contains substantial allegations for relief, and a prayer which provoked the order rendered upon it, is in the words and figures following:

Let this petition of intervention be filed, and let the parties herein named be cited as prayed for, and let the amount of adjudication herein mentioned be deposited as a special deposit in the hands of the State National Bank, on or before the first day of October, 1881, or thepavties sliow cause to the contrary on said day, and let notice of this filing of this petition, to all whomever it may concern, be given by advertisement in the New Orleans Democrat, commencing on Sunday, August 14th, 1881, and every succeeding Sunday until October 1st, 1881, as prayed for in the within petition.”

There can be no doubt that a purchaser- at a judicial sale has the right of disencumbering the property adjudicated to him, in the same manner as the expropriated owner could have done had he not been divested of ownership by the seizure and sale; that is, by paying the creditors, to secure whose claims the property was burdened. But although this right be co-extensive, it is not greater; and the obligation of payment, to which the purchaser may have subjected himself, by retaining a portion of the price, is not the same.

The owner, who had mortgaged the property to pay his own debt, is liable, personally, for the whole indebtedness, while the purchaser is not. His responsibility, whatever it be, is to be measured by the amount of the adjudication, to pay which, the property remains burdened. C. P. 708 ; 10 A. 286.

What the rights or claims may be, which creditors interested in the amount retained may have, we'are not called upon to declare in this controversy, and we will abstain from doing so.

Whatever that right be, and whatever the mode be, in which it can bo exercised, the order obtained on the proceeding instituted by Lobe & Co., which we would be made to view as an interpleader, is not sanctioned by law or precedents in this State. 7 A. 297; 7 R. 398; 1 A. 145, 330; 2 A. 987; 11 A. 489; 2 A. 650; 6 A. 485; 18 A. 641; 21 A. 401.

As Cain could not have asked and procured such an order, his vendee, who has no greater rights than he himself could have asserted, cannot resort to that form of proceeding for relief.

The right of a purchaser should be averred in a direct action, independent from the main suit in which the writ issued, and the property was sold; the proper averments must be made, the creditors interested must be named and must be reached by the process of the court where they will be bound to plead. 21 A. 101, and authorities there cited.

Where it is not asserted in that form, and parties do not object, the judgment rendered will be as valid as if it had been rendered in a direct suit.

We do not propose to pass upon the regularity of the proceeding by “intervention” in this case, which is not before us, no exception having been taken and sustained dismissing it. We are called upon merely to revise the correctness of the' order. We l^ve done so. The plaintiff is entitled to proceed with his intervention, as though the order thereon had not been rendered.

Judgment creditors can, however, in proper cases, proceed by rule. 1 A. 330; 2 A. 650; 24 A. 256; 25 A. 146; 27 A. 293; 28 A. 754; 29 A. 319, 358.

It is only after hearing all concerned in the amount retained by the purchaser, and in the inscriptions securing payment, that the court can pass upon the correctness and dignity of each claim, and allow, reject, or regulate the same. It is. only after such judgment has become final and executory, that the purchaser is authorized to pay, and can force the creditor to receive payment, and, in default, can deposit the amount, accruing to him, contradictorily with him, in such manner as the court may, under the law, determine.

The court was without power or authority to issue in limine an ex parte order directing the amount of adjudication to be specially deposited in a bank, on or before a fixed day, unless parties concerned show cause to the contrary on said day. Neither could it notify the filing of the petition to all whom it may concern, by advertisement in a newspaper during a specified period.

It is in the course of proper proceedings, that the validity and effect of the sale, together with the reality and dignity of the claims of the creditors will have to be tested and decided.

An inscription duly made can be erased only with the creditor’s consent, or by a valid decree of court contradictorily obtained. 8 R. 97, 130; 8 A. 58; 2A.606; 21 A. 401; 29 A. 848; 2 L. 489 ; 4 L. 17; 5 L. 329 ; 6 R. 299; 11 R. 171.

Any judgment which would be rendered on the petition of Lobe & Co., unless after issue joined by appearance, or by default obtained after proper service of citation, would be absolutely void.

Tiie advertisement can supply neither the ser%dce of the petition, viewed as a rule to show cause, nor the service of the same, considered as the statement of the cause of action, prayer for relief,, nor of the citation which the law requires in such action. Parties concerned, not cited and served, and not waiving citation and service and not joining issue, would not be bound by such proceedings.

While wo are far from denying that Lobe & Co. are entitled to adequate relief under our own laws and jurisprudence, we do not consider that they can obtain it by resorting to the proceedings which they have inaugurated. 2 A. 987; 34 A. 54; Partida III, t. II, 1. 46.

For that reason, among others, we cannot pass upon the validity and effect, even if founded on the suit brought by the representative of the succession of Weil, the merits of which will have to be considered at the proper time, -j^ien presented in the proper form.

We have read with unusual interest the able brief presented on behalf of Lobe & Co., in vindication of the proceeding, but while we give it the credit to which it is entitled, we niust withhold our concurrence in the legal propositions which it advances. It is not until after the Legislature will have adopted and formulated them, in the shape of a law, that we will feel authorized to admit them as guides, binding upon us, and to carry them out accordingly.

We think that, the petitioners are extended ample relief by our own laws and jurisprudence. This dispenses us from borrowing from other systems on the subject.

The order was improvidently rendered and should be rescinded.

For the reasons contained in the foregoing opinion :

It is ordered and decreed, that the judgment appealed from, discharging the rule of the executors for the proceeds of sale, be affirmed, at the cost of appellants.

It is further ordered and decreed, that the ex parte order rendered on the 9th of August, 1881, on the petition of Lobe & Co., filed on that day, be annulled and set aside, and that the prayer therein, for such ex parte order, bo refused, without prejudice to further proceedings on the petition itself, contradictorily with the parties therein asked to be cited, the costs on the appeal from the order, including the cost of rendition of the order, to be paid by Lobe & Co.

Levy, J., absent.

On Application for Rehearing.

We are asked to amend our decree so as to make it read that the petition filed by Lobe & Co., be remanded to tbe lower court to be further proceeded with according to law.

We cannot remand a matter which never was before us, and which has not ceased to be pending in the lower court. We were merely called upon to decide, whether a certain ex parte order was or not legal in some of its features. We have done so. Our decree merely erases from the order the objectionable portions in it. The petition of intervention, from the date of its filing, has not ceased to be a pending proceeding. As it never was put at issue, and no question was ever brought up touching it, in that condition, we could not and did not pass upon its merits or demerits. Our decree was well considered. It distinctly reserves the right of the petitioner to further proceedings, on the pending intervention, contradictorily with the parties asked to be cited. Under such circumstances we cannot be asked to anticipate the merits of the application and now express an opinion touching the disposition which the petitioner is to make, pendente lite, of the proceeds of sale. Much in that respect will depend upon the regularity of the proceeding, and upon the right to deposit the fund retained by the purchaser, in some way or other.

We cannot take notice of the invoked rule of the lower court, to which our attention is called in the brief for a rehearing, for the first time, which is not in the record, and touching which there was no issue before us.

Rehearing refused.

Levy, J., absent.  