
    
      JACKSON & AL. vs. WILLIAMS.
    
    West’n District.
    
      Sept. 1822.
    Appeal from the court of the sixth district.
    A sale at auction of immoveable property is not perfected until the signature of the auctioneer is affixed to the process-verbal.
    A third possessor, against whom an hypothecary action is prosecuted, may demand the discussion of the property of his debtor and sureties, but not of property in the hands of other third possessors.
    When a debtor whose property is subject to a general or tacit mortgage has successively objects of real property or slaves, the creditor must bring his action against the last purchaser, and ascend in succession to the first.
    Scott, for the plaintiffs,
    On the 7th June, 1819, the present plaintiffs obtained a judgment against L. H. Gardner for $1705 45, which was regularly recorded on the same month. A short time afterwards Gardner died, leaving a considerable property, but greatly involved. His widow continued in the possession of his estate, and on the 8th of December, 1819, the judgment was revived against her, as tutrix of her minor children, and an execution issued, on which the sum of $635 was wade by the sale of property. The revival of judgment was not recorded. On the 29th and 30th of June, 1820, the whole estate was sold publicly by the parish judge, at the request the widow. The estate was sold on a credit, till the 1st of April, 1821, and, before the debts became due, they were transferred by the widow to some of the creditors, in exclusion of others, and the present judgment remained unsatisfied.
    The present suit is brought by the plaintiffs, praying an order of seizure to sell certain slaves in the possession of the defendant, which belonged to Gardner at his death, and which were sold at the sale of his estate.
    The plaintiffs contend, that their judgment operated as a general mortgage on the whole estate of Gardner, from the 7th June, 1819, the day on which it was rendered. That the sale, made by the parish judge, does not destroy it; and that they have a right to seize and sell any property that may be found in the hands of third persons, which belonged to the estate, in order to satisfy their judgment.
    It cannot be denied, that the judgment created a judicial mortgage on Gardner's estate from the day of its rendition. The only inquiry there is, whether it has been destroyed by any subsequent proceedings.
    And first, whether the sale by the parish judge destroyed it. It is clear that a sale made by the heir who succeeds to and accepts a succession, without the benefit of an inventory of property, subject to a mortgage, either general or special, does not destroy the right of a mortgagee to pursue the property in the hands of third persons, any more than a sale made by the deceased himself. Because, in that case, the heir steps into the place and stead of the ancestor, takes possession of the property as his own, and becomes individually liable and responsible for all the debts and engagements of the deceased, in the same manner as he himself was bound—and is not bound by any particular rules of administration. In this case the widow continued in possession of the whole property of the deceased, without observing the rules of law necessary to avail herself of the privilege of renouncing the community, and thereby making herself individually liable for all the debts and engagements of the deceased—and acted without observing the rules of administration. It appears to me then, that she does not differ from the heir accepting, purely and simply without the benefit of an inventory. She had no legal character in which she acted; she, in fact, converted the property to her own purposes. It is true, that the sale of the present property was made publicly by the parish judge; but it appears, as stated in the process-verbal, that it was made at the request of the widow, but whether in his capacity of judge of probates or auctioneer, does not appear. It is presumable it was made as auctioneer, because it is stated to have been made at the request of the widow, and not by virtue of an order of the court of probates. It is precisely the same, then, as if the sale had been made by the widow at private sale. The case, I think, may be reduced to this simple proposition:—A man dies, leaving a large estate, subject to a general mortgage; his widow continues in possession of the property nearly twelve months, and finally applies to the parish judge and has the whole sold at public sale on a credit, and before the notes become due, she sells and transfers them at private sale. Does this destroy the right of the mortgage creditor to pursue the property in the hands of third persons? It appears to me it cannot.
    The Civil Code, in treating of the rights of the mortgage creditor, against the property mortgaged, speaks generally of the right of seizing and selling it wherever it may be found, without any exception as to sales made at public auction, or by the court of probates; and points out a particular mode of proceeding, in such cases, called the action of mortgage—see Civil Code,p. 460 & 462. It gives the party the right to seize the property mortgaged, into whose hands soever it may pass, and points out a particular mode of proceeding, in order to sell the same. It may be pursued in the hands of third persons; nor is there any exception as to the manner in which it may have come into their possession. It seems to contemplate that it should be sold only for the particular purpose of satisfying the mortgage; and until it is sold for such particular purpose, the mortgage can never be destroyed.
    It is denied, that a sale made by the parish judge, in the regular course of administration, destroys the right of a mortgage creditor; but that he has a right to pursue the property into whose hands soever it may pass, until his debt is satisfied. The parish judge cannot sell property subject to mortgages on a credit; but it must be sold for cash, and the proceeds immediately paid in discharge of the mortgages; otherwise, according to the practice of our courts, the mortgage creditor is in no better situation, on the death of a person, than simple creditors.
    The parish judge proceeds to sell the whole property of the deceased on a credit, and the collection of the money devolves on the heir or other representative, who disposes of it as he thinks proper, and the mortgage creditors are driven to a tedious recourse against them and their securities as other creditors are. But in this case, it is evident that the widow did not proceed in a regular course of administration. The estate remained in her possession near twelve months before any application for a sale was made. The debts arising from the sale, before they they became due, were transferred, and of course no classification made of the debts. The whole estate has been dispersed, the debts transferred, the widow insolvent, and nothing left to satisfy the present plaintiffs. If there was other property, it was the duty of the defendant to point it out. It is said, in Domat. vol. 1, p. 386, art. 5, book 3, t. 2, sec. 1, that the sale made by the heir or executor of the property of the deceased, does not destroy the privilege or mortgage; but that the mortgage creditor has a right to pursue it in the hands of third persons, though the subject is not here fully treated of.
    In the second place it is contended, that the revival of the judgment against the widow, as tutrix of her minor children, destroyed the judicial mortgage against Gardner, as it was not recorded as the law requires, and that it was a novation of the debt. This was a necessary proceeding, in order to enable the plaintiffs to pursue their mortgage against the estate; and if it had been recorded it would not have created a mortgage against the widow, as it was revived against her as tutrix. It was only intended to operate against the property of the deceased, in her hands to be administered. The law provides, that no execution shall issue against the property of the deceased until it is revived against his legal representatives by the ordinary civil action, Civil Code, p. 490, art. 7 ; and the recording of this judgment could only have operated as an additional mortgage on the property of the widow. It cannot be a novation, or the mortgagee would be placed in a much worse situation by the revival (a proceeding which the law makes necessary) than he was before. His judgment would then operate as a mortgage only from the date of the revival. If neither the sale by the parish judge, nor the revival of judgment, has destroyed the original mortgage, it must still exist.
    But the defendant contends, and the judge below seems to have adopted the doctrine, that we were bound to pursue the property last sold. In answer to this, we say, that this property was sold on the last day of sale with other real property, and that the law does not make any distinction as to hours or minutes. In cases of mortgages, the law provides that all which are executed on the same day shall have equal dignity, although the notary shall have noted the hour. Civil Code, 470-79.
    The same doctrine must apply in this case. A number of negroes were sold on the same day, among whom are those claimed by the plaintiffs; nor can it appear, that the slaves in question were sold first or last; the mere circumstance of their having been placed first on the process-verbal is no evidence that they were sold first. The parish judge proceeds to cry the property to the highest bidder, and after the sale closes, the parties are called in to sign the process-verbal, or to execute their notes and comply with the requisites of the sale; and it is mere accident which person is set first on the process-verbal. But in order to avail himself of this plea, the defendant should have complied with the rules of discussion in pointing out the property and tendering the necessary expenses, in order to carry it into effect; Civil Code, 462, art. 44.
    It is urged also, by the defendant, that we should, at least, have divided our claim among all the purchasers on the last day of sale. The plea of division may be plead by a co-surety, in cases of suretyship, by virtue of the provisions of our code. But I know of no law to authorize us to apply that doctrine to the present case. The defendant is not in the situation of a surety; he is the holder of property liable to a general mortgage, and there is other property also equally liable. In this case the law provides, that the creditor shall first seize the property last sold, and so on up to the first sale, until his debt is satisfied; but there is no provision requiring him to apportion his debt among any set of purchasers.
    This property was purchased by Mrs. Gardner, at the sale of Gardner's estate, and subsequently sold to Williams; consequently, it is the last property sold, which belonged to Gardner’s estate. The sale made by the parish judge, was her own act; it was made at her instance, at her request. Ought she then to avail herself of her own wrong, and by purchasing the property in her individual right, destroy the mortgage? She cannot be said to be an innocent purchaser, because the act of sale, if illegal, was her own illegal act, and she apprized of it.
    
      The property was sold, as belonging to the succession of L. H. Gardner, at the instance of the widow, tutrix of her minor children. It was the property of the minor children. How then could the widow purchase in her own right, who was acting as tutrix of her minor children? The law expressly prohibits tutors from purchasing the property of the minor. See Civil Code, 68, art. 51. The purchase made by her was void, and the private sale subsequently made to Williams, equally so. In this view of the case, the property is still clearly liable. The widow acted as natural tutrix of her minor children, an appointment which was confirmed to her by the parish judge. She procured a public sale of their property; and at that sale, became the purchaser of the property now in question. The act is one expressly prohibited by law, and of course void. The property remains in the same state as prior to the sale, and is still liable to this judicial mortgage.
    If the heir take the property of the estate, without an inventory, he takes it subject to the same liens, that existed on it before the death of the ancestor; and his sale cannot affect them.
    
      The widow took the estate in her own wrong, Domat. 3, 5, 1, §2; and her vendee has no better right than if he had purchased from the original debtor.
    The sale of a court of probates, does not extinguish a mortgage. Civil Code, 460, art. 40. Id. 490, art. 5.
    
    Admitting that it does, the sale in the present case appears to have been made by the parish judge, in his capacity of auctioneer.
    It does not appear who was the last purchaser. The sale was an entire act, performed in one day. Id. 462, art. 60.
    Thomas, for the defendant.
    The plaintiffs did not record the first judgment, but obtained a new one against the widow, which was a reversion of the former.
    There was a family meeting convoked, in order to deliberate on the affairs of the estate, and it recommended the sale. The judge of probates presided at this meeting, and in consequence of its deliberation, and at the request of them all, proceeded to the sale. This was, therefore, a judicial sale. Tregre vs. Tregre, 6 Martin, 462. Act of 1817, p. 40, § 21.
   Martin, J.

delivered the opinion of the court. The plaintiffs state, that they had a judgment against Gardner, which was duly recorded; and on his death, duly revived against his widow, who was tutrix of his minor heirs, and had entered on the estate and disposed of it, without satisfying the said judgment. That the defendant has in his possession four slaves, whom he purchased from the said widow, and were part of the estate, and consequently liable to satisfy the judgment.

The defendant pleaded the general issue ; that he held the slaves under a good title; that if the plaintiffs ever had a lien on them, they had lost it; that the slaves were sold by the court of probates, with the rest of the estate; that if the plaintiffs' lien exist still, they ought first to sue the widow and Casson, each of whom purchased one of the slaves of the estate, on whom the lien exists, as much as upon those of the defendant; that this lien, admitting its existence, operated as a tacit mortgage on the whole of the land and slaves of Gardner, and every part of it, and not exclusively on any part of it in the hands of a third party; which, if bound at all, is only concurrently so with the rest, and the plaintiffs ought to have made all the purchasers parties.

The district court was of opinion, " that if the plaintiffs can recover against the purchasers of Gardner’s estate (which it is unnecessary to decide) they ought to have brought their action against the last; or, if it be a fact that the sales must be considered as one sale, they should have proceeded against all; that he cannot favour one purchaser to the injury of the rest."

Judgment was accordingly given, "that the plaintiffs recover nothing in this suit; but, without any detriment to any claim, they may have for such portion as the defendant may be liable for by law, in case the property last sold should be insufficient, or in case he should be equally bound with the rest." They appealed.

The record shows, that the plaintiffs obtained judgment against Gardner, and had it duly recorded—that they procured a judgment against the widow, tutrix of the heirs, that it should be executed on the estate of the deceased in her hands.

The estate was sold at public auction by the parish judge, on the application of the widow, after the deliberation of a family meeting had established the propriety of selling and the terms of sale. But nothing appears to have been done, by the court of probates, in regard to the sale.

The process-verbal of the sale shows, that the widow and Casson bought one negro each, at the auction, after those who are now in the defendant’s hands had been stricken down, and the bidder and his surety had subscribed the process-verbal—which shows that the sale took place without any adjournment.

We are of opinion that the sale to the bidder, the defendant’s vendor, was only inchoate, when the negroes were afterwards stricken down to the widow and Casson, and was only perfected by the subsequent signature of the auctioneer or parish judge.

A notarial act is complete only after the signature of the notary and witnesses, 1 Pothier, Obligations, 11 ; and a sous seing prive cannot seriously be said to be so, till subscribed by the vendor, or some other person duly authorized. In the present case, the whole sale is one entire act, which received its perfection by the signature of the parish judge at the conclusion of the sitting.

We, therefore, conclude that neither the widow nor Casson were posterior purchasers to the defendant's vendor, though they were posterior bidders, and that he cannot complain that they were not sued before him.

The learned judge has not referred to the particular law, in virtue of which his judgment is rendered, and on the authority of which he holds, that if the sale must be considered as one entire act, the plaintiff should have proceeded against all the purchasers, and could not favour either of them to the injury of the others.

The mortgage is a real right; in its nature indivisible. It subsists for the whole, in all and each of the things affected by it, and on every part of them—and it follows the mortgaged property into whatever hands it may pass. Civ. Code, 452, art. 3.

A third possessor, against whom an hypothecary action is prosecuted, may well demand the discussion of the property of the debtor, and his sureties; but not that of other property (in the hands of other third possessors) mortgaged for the same debt.—2 Pothier, Hypotheques, n. 37.

Our own statute details the means which the third possessor has to stay or resist the hy-pothecary action; and gives, among others, the plea that there is other property mortgaged for the same debt, within the possession of the principal debtor. Civil Code, 462. Nothing seems to authorize the conclusion which the district judge, in the hurry of trial, has drawn, that a third possessor may delay or resist the creditor’s claim, on the ground that there is, in the hands of other third possessors, other property mortgaged for the same debt, when all the third possessors acquired by the same conveyance, i. e. by one entire act or deed of conveyance, simultaneously.

But where a debtor, whose property is subject to a general or tacit mortgage, has successively sold several objects of real property or slaves, the creditor must bring his action against the purchasers according to the order of their purchases, respectively; beginning at the last and ascending in succession to the oldest.—Acts of 1817, p. 40, § 29.

It appears to us, the plaintiffs were not bound to resort to the widow or Casson, before they resorted to the present defendant, nor to make any of the purchasers stated, parties to the present suit.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; that an order of seizure and sale issue against the slaves named in the petition, in the possession of the defendant, to satisfy the balance of the judgment obtained by the plaintiffs against Gardner, in his life time ; and also the sum of ninety-nine dollars and one-half, the costs of the revival of the judgment against the heirs, with legal interest—and costs in both courts.  