
    PATIN ET ALS vs. PREJEAN ET ALS.
    Western Dist.
    
      September, 1834.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    The Code of Practice has re-enacted the same general rules, in relation to the discussion of property by creditors, having a general mortgage on the property of their debtors, as was provided by the act of 1817, requiring them to proceed against the property last alienated, and ascending towards that first sold, until their claims be satisfied.
    A right or title, acquired under a contract, cannot be modified or aficcted by any subsequent act of the legislature ; but the remedy or means given by law, to enforce those rights, are always in the power of the legislature, who may extend or restrict them, as circumstances may require.
    The means by which a minor’s rights, against the property of his tutor, are to be enforced, are always in the power of the legislature. In requiring him to discuss property last alienated, before coming on that previously sold, although the law was enacted after his mortgage attached to the property of his tutor, yet it was in the power of the legislature to pass it.
    The plaintiffs allege, that they obtained a judgment against their father and natural tutor, Marcel Patin, on the 10th day of September, 1825, for two thousand four hundred and thirty-six dollars twelve cents, being eight hundred and twelve dollars four cents, in favor of each of them, with legal interest, on the claim or portion of each, from certain dates, and with a legal mortgage on all their father’s property, which he owned and possessed, at any time since the 15th day of July, 1812, the date of the natural tutorship.
    In October, 1828, the syndics of Marcel Patin, who had became insolvent, presented a tableau of distribution of his estate, among his creditors, which was homologated, on which the plaintiffs were placed, for the aggregate sum of nine hundred and twenty-eight dollars sixty-nine and three-fourth cents, leaving still a balance of two thousand and forty-nine dollars, on said judgment, against their father, unpaid. They allege, they have made an amicable demand on the syndics, for th'e balance of their debt; who replied there was no more property or funds of said estate in their hands.
    The plaintiffs further allege, that their said father was owner of a plantation, now in the possession of the widow Prejean and heirs of N. Thibodeau, which was alienated by him, in 1814; that he was owner of a negro man Harry, now in the possession of Martin Sudrique, who was sold by him, in 1S23; and that he was owner of a negro woman Frainjoise, and her child, now in possession of Valery Martin, which he sold in August, 1823 ; all of which property, the plaintiffs charge to be subject to their legal mortgage, as having been alienated since the mortgage began to exist, and that it is liable to the payment of their respective claims. They pray that these parties be cited, to show cause why the said property shall not be seized and sold, to satisfy the balance of. the aforesaid judgment, with interest and costs.
    
      The defendant, widow Prejean, and as tutrix of the minors Thibodeau, pleads a general denial; and alleges, that the plaintiffs are bound to prosecute their claim (if any they have) against the mortgaged property last sold, and ascending to that first sold; she alleges a sale of an undivided tract of land, by Marcel Patin, in November, 1819; and another tract, sold in November, 1820, all of which, together with the other property sued for, she prays may be first discussed and proceeded against, before coming against the plantation in her possession; she prays the court to fix the amount of the sum she is to pay, to carry on the discussion, and tenders it in open court.
    
      Sudrique answered,
    reserving his right to dispute the plaintiffs’ claim, and alleged, that the plaintiffs were bound to proceed against, the negro woman Framjoise and her child, in the possession of Valery Martin, as being last sold, before coming on him.
    
      Martin answered,
    and pleaded a general denial; he denied specially, that Marcel Patin was tutor of plaintiffs, or that any mortgage existed on the property in his possession; he denies that the plaintiffs are entitled to any thing, as heirs of their mother; that after the death of their mother, the community which had previously existed between her and their father, was continued, and was administered by the father, for the benefit of all the parties concerned; that during its continuance, debts were contracted, and property purchased, in the name of the father; that among the debts contracted, there was one in favor of the Louisiana State Bank, one in favor of M. White, .and one in favor of F, Breaux, on which judgments were obtained and executions issued, and on the 28th of August, 1823, á negro girl named Frangoise, and her child, were seized and sold, when the defendant became the purchase]-, for five hundred and thirty-five dollars, subject to the payment of two hundred and five dollars, with interest, and a special mortgage in favor of A. Guidry, which he has paid; he further alleges, that the property so purchased by the said Marcel Patin, was acquired by him, subsequent to the death of the plaintiffs’ mother, and was liable to the payment of said debts; and that the plaintiffs have received from their father, various articles of property, for which they have given no credit; that the community of property continued, until after the purchase of the negro woman and her child; and which was sold as community property to pay community debts, for the payment of which the plaintiffs were also bound. He prays that the plaintiffs’ petition be dismissed, &c.
    On these issues the cause was tried at the April term, 1832, of the St. Martin’s District Court. The plaintiffs produced in evidence, the judgment in the Probate Court, against their father, in which they recovered the amount now claimed, after deducting a small credit.
    The defendants introduced in evidence, two acts of sale, made of two tracts of land, in 1819 and 1820, which were required to be discussed, in the answer of the widow Prejean, before proceeding against her.
    The district judge being of opinion, the plaintiffs were entitled to the amount, of the judgment claimed, in their petition, against the defendants, Sudrique and Martin, and they were bound to discuss the property in their possession before coming against the property of the other defendants, ordered, that the negro woman and her child, in the possession of Martin, and the negro man Harry, in possession of Sudrique, be seized and sold, to satisfy the plaintiffs’ demand, and that the cause be continued as to the other defendants.
    The sheriff returned an account of sales, of the slaves ordered to be seized and' sold, by which it appeared they sold for seven hundred and forty dollars, still leaving a.large balance of plaintiffs’ judgment unsatified.
    At the November term, 1833, of said court, the trial of this cause proceeded. Judgment was rendered on the evidence already introduced, when it was ordered and decreed, that the proceedings against the property, in the possession of the widow Prejean, be suspended, until the plaintiffs have discussed the two tracts of land, sold in 1819 and 1820, by the plaintiffs’ father, and now in the hands of third possessors; and that the defendant, widow Prejean, pay into court the sum of seventy-five dollars, within thirty days from the date of the decree, to defray the expenses of the discussion, and on failure, to be forever barred from requiring or setting up said discussion. From this decree the plaintiffs appealed.
    
      Simon, for the plaintiffs.
    
      Brownson, contra.
    
   Martin J.,

delivered the opinion of the court.

The plaintiffs seek to obtain payment of a judgment, which they have obtained against their late tutor, by the sale of a tract of land, sold by him. The attempt is refuted by the defendants, who point out another tract, sold by the tutor, after he had sold that in the possession of the defendants. The plaintiffs contended, that as their tutor had sold the tract, in the possession of the defendants, before the year 1817, the latter could not avail themselves of the act passed in that year, which requires creditors, with á general mortgage, to seize at first the land last sold by their debtors, The plea of discussion was sustained, and the plaintiffs appealed.

PiSfce^iaareei>a«tedthe same general rules in relation to the jn-o^erfy by oreditors ,havins “ gage on the pro-debtors,0 asaras act of i8i7y re6 wiring them to the property last soeTdfngtowards that first s°ld> be satisfied.

It is contended in this court, that the act of 1817, invoked by the defendants, established a rule of practice, and is consequently repealed by the Code of Practice, and that if it be not repealed, the defendants cannot avail themselves of it, because their ancestor purchased the land, before the passage of the act.'

The Code of Practice, 715, provides that, in regard to sales under a fieri facias, the purchaser against whom a suit is commenced by a creditor, having a legal or judicial mortgage on the property of the debtor sued, may require the creditor to discuss the other property, in the possession of the debtor, before coming on that which he has in his possession; and even that which the debtor has alienated since the purchase.

Had the legislator gone no farther, it might be urged oh the one side, that he intended only a special provision, confined to the cases of purchases at a sheriff’s sale, and on the other side, that it being difficult to discover, why a different rule should be established, in regard to such sales, it might be safely concluded, that the reason evidently extending to every sale, all should be regulated in the same manner.

But the legislator proceeds, and gives us the grounds on , . , , , , ,. , , , which he acts, “because the creditor who has a general mortgage, can only act against the property, which his debtor has disposed of, in the order in which the alienations have taken place, beginning at the most recent, and ascending to the most ancient.”

If the rule of practice, in this respect, established by the act of 1817, and invoked by the defendants, was repealed as a rule anterior to the Code of Practice, still the principle is recognised and incorporated in that Code, that the creditor, with a general mortgage, must proceed against the property alienated by the debtor, by beginning at that most recently disposed of, and ascending towards that first alienated, until his claim be satisfied.

A right or-title acquired under a contract, cannot be modified or suhsequentacTof hut thef'remedy or means given thol*e\?ghteÍ°are power of'tíie gisiature, who resu-iemhem as mayreqSreeS

The means hy righteagStííe property of Ws tutor are to he enforced, are aiel^f1 the^egislature. iu reqvunng him to-discuss property fore* comíng ^on sold pr¡athough the law was en-mortgage attachty rf'wFtSoT yet it was in the gisTatare to pass

It remains for us to examine, whether purchasers, before act 1817, may avail themselves of a legal provision, enacted since the perfection of the contract, under which the ¡an¿ was acqUjrefi. *■

, It cannot be doubted, that the title or rights, acquired under a contract, cannot be modified or affected by any subsequent act legislature; but the means of enforcing such rights, and protecting such titles, in other words, the remedy provided by law, to insure the enjoyments of such rights and *s a^ways in the power of the legislature, who may extend or restrict it, as circumstances may require,

The lien on the land of the tutor, which results from the tmst committed to the tutor, cannot be destroyed or modified, without a correspondent destruction or modification of the minor’s rights; but the means by which the minor’s rights may be enforced, his remedy is always within the power of ’ .... . . . the legislature. In requiring him to proceed against the property, most recently alienated by the tutor, the minor’s rights or lien in the rest, is not destroyed or modified. Some “ . . , , . . , . delay, indeed, is thereby created; but every citizen who is obliged to resort to the court, to enforce his rights, must sufrmit to the forms and delays which the law has prescribed, or may from time to time prescribe.

At the passage of the act of 1817, the minors would have keen bound to seize first the tract of land which they are now called on to discuss, because then it was in the possession of their tutor. That act, in requiring them to discuss the same tract after a sale, did not put them on duriore casu.

It does not appear to us, that the District Court erred.

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