
    CORDEVILLE & LACROIX vs. HOSMER.
    APPEAL FROM THE COURT OF THE EIGHTH DISTRICT, FOR THE PARISH OF ST. TAMMANY, THE JUDGE THEREOF PRESIDING.
    A monition has no other effect than to protect the purchaser against the claim of the defendant in execution, or that of any other person, resulting from any irregularity in the judgment or other proceedings, in making the sale.
    The vendor of lots, when opposed by the builders’ claim and privilege on buildings erected, is entitled to have the ground appraised separately from the houses, and to be paid from the proceeds of the ground, separately from that of the buildings.
    The appraisement must be made by persons chosen by the vendor and builder; neither of whom can be concluded by an appraisement made without his knowledge.
    This is an hypothecary action against the defendant, as third possessor of three lots of ground in the town of Mandeville. The plaintiffs allege they are the holders of two n.otes, dated the 22d September, 1837, payable eighteen months after date, one for four hundred and twenty-five dollars and the other for seven hundred dollars, executed by J. Penas, to the order of, and endorsed Jean Perjole Y Ripole; and that said notes were all protested for non-payment at maturity, but are secured by a mortgage on the lots in question ; and that they have in vain demanded payment from the maker and endorser of said notes, more than thirty days before coming on the third possessor, who refuses to pay the same, or deliver up the lots so mortgaged, for their payment, They pray that the defendant be condemned to either pay said notes, or in default, that the lots be seized and sold to pay the same.
    - The defendant pleaded a general denial ; and averred that he was the bona fide owner of the lots claimed ; having purchased them at sheriff’s sale, under a judgment and execution obtained by Johnson & Hosmer, against said Penas & Ripole. That said sale was duly made, and has been perfected by a monition. He prays that the plaintiffs’ demand be rejected.
    ^It appears that the notes held by the plaintiffs, were given for the price of these lots, and they have the vendor’s privilege and mortgage on them. That the judgment of Johnson & Hosmer, was for the price of buildings put on said lots since the sale; and for which the builder’s privilege was claimed. Both the lots and buildings were sold to satisfy this judgment, without any notice - to, or making the plaintiffs, holding the vendor’s privilege, parties. The defendant purchased in the lots and buildings at this sale, took out his monition and had the sale homologated.
    There was judgment for the defendant, and the plaintiffs appealed.
    
      JSodin, for the plaintiffs.
    
      Hennen, contra.
   Martin, J.,

delivered the opinion of the court.

This is an hypothecary action against the third possessor of three lots of ground in the town of Mandeville. The plaintiffs allege they are the holders of two promissory notes signed by J. Penas, payable to the order of, and endorsed by Jean Perjole Y Ripole, the payment of which is secured by mortgage on the three town lots in question.

. .. A monition has no other eftect theTpurehaser against the fendant in exeany°no\herhperson, resulting guiárity in the othlr16proceedthefsaie makins

The vendor of lots, when opposed by the builder’s claim and privilege on ed*'is entitledto have the ground rateiy SfromThe paid6from*°the proceeds of the grounds separateiy from that of the buildings.

The defendant alleges he purchased these lots at sheriff’s' sa[e5 made under an execution and judgment against the maker and endorser of said notes, and that he holds the property by a good and unencumbered title, which has been-perfected by a monition and judgment of homologation.

There was a judgment for the defendant, and the plaintiffs appealed.

The defendant purchased at the sheriff’s sale, made in . 1 . o t i pursuance of a judgment obtained by Hosmer. & Johnson, for the price of a building which they had erected on these l0ts ancj for which they had a privilege as builders. The monition which homologated the sale by execution, has no other effect than to protect the purchaser against the claims 0f the defendant in the execution, or of that of any other person, resulting from any irregularity in the judgment or any of the proceedings, between it and the final adjudication of the premises.

In the present case, the plaintiffs do not complain that the judgment was improperly obtained, nor of any irregularity in the issuing, or in the execution of the writ of fieri facias under which the defendant claims : But, they seek to exercise a J right, which they had no opportunity of opposing to that of the piamtins in the execution. As subrogated to the rights of the vendor of Penas & Ripole, the defendants in the execution, they are now opposed by, and are in concurrence with the claim of the builders. The Louisiana Code provides that “ when the vendor of lands finds himself opposed by workmen, seeking payment for a house or other work Jerected on the land, a separate appraisement is made of the groun(j ancj 0f ^|ie house; the vendor is paid to the amount of the appraisement of the land, and the other to the amount of the appraisement of the building:” Art. 3235.

This appraisement must be made by persons chosen by the vendor and the builder; neither of whom can be concluded by any appraisement made without his knowledge or participation.

The appraisement must be made by persons chosen by the vendor and build er; neither of whom can be concluded by an appraisement made without his knowledge.

An appraisement and sale are now for the firsftime necessary to the exercise of the plaintiffs’ rights as mortgagees. They have been guilty of no laches: No opportunitjMiaving been offered them, to concur in a proper and legal apprisement.

The court below, in our opinion, erred, in disregarding the claim of the present plaintiffs, and giving judgment in favor of the defendants, who did not acquire, from the sheriff, any of the rights of these plaintiffs on the premises, but only those of the defendant in execution.

It is, therefore, ordered, a'djudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and, proceeding to give such judgment as the court below should have rendered, it is, therefore, ordered, adjudged and decreed, that unless the defendant shall pay the plaintiffs’ demand, to wit: the sum of eleven hundred and twenty-five dollars, with interest, at the rate of teffter cent, per annum, from the 22d March, 1839, until paid, an^Kists, the three lots of ground described in the petition, be seized and sold to satisfy said debt and costs. And it is further ordered.;, that the defendant and appellee pay the costs of his opposition and those of the appeal.  