
    No. 10,549.
    R. F. Learned vs. George L. Walton. R. M. Walmsley & Co., Intervenors. Mrs. H. Rosenthal, Third Opponent.
    1. In case tlie defendant in apending suit raises the question of the nullity of a sale made to the plaintiffs pendente lite, by way of an answer and reconventional demand, a previous tender is not a condition precedent thereto; particularly when the sale has been made in the foreclosure of a special mortgage, and the mortgagee become the purchaser and attributed the whole of the price to the satisfaction of.his mortgage claim.
    2. A clause in an act of conventional mortgage, stipulating a waiver of the benefit of appraisment, is valid in law.
    3. A sequestration of property which is immovable by destination, and forms part of realty under mortgage, but which has been removed therefrom by the mortgagor, as an ancillary proceeding, for the recovery and restoration thereof to the mortgaged premises for seizure and sale, is a legal and valid proceeding, and does not have the effect of converting executory proceedings into those via ordincw'ia.
    
    
      4: In case some third person opposes the claim of the mortgage creditor, and sets up title in herself to the property thus sequestered, and the former retorts in an answer that the third opponent’s title is simulated and fraudulent, this pleading does not have such effect.
    5. When the mortgagor enjoins the sale, and the mortgagee, in his answer, prays judgment for the mortgage debt, his right thereafter to proceed under the writ of seizure and sale enjoined is abandoned and lost.
    6. A creditor seizing* a plantation under a writ of seizure and sale, in foreclosure of a mortgage, has the right to require the sheriff holding the property to cultivate it, while under seizure, for the account of the mortgagor, upon making the necessary advances for that purpose; and he has the right to recover the amount of such advances, and value of his services.
    
      7. The cost of such cultivation, keeper’s lees, and all other costs incurred, other than sueli as are covered by the statutory lee bill, must be taxed on rule as a supplement to the final judgment.
    APPEAL from the Ninth District Court, Parish of Concordia. J.
    
    
      Steele & Dagg for Plaintiff and Appellant:
    A real tender is a condition precedent, and sine qua non to authorize a suit to rescind a sale. Where no such tender is alleged or proved the action to annul and rescind the sale must be dismissed. Farquhar vs. lies, 89 An. 874.
    No answer or exception is required to a demand in reconvention.
    The mortgagor may waive appraisement in the act of mortgage and such waiver is legal and valid. 29 An. 210; 19 An. 89; 18 An. 68.
    A mortgage debtor, who, after acknowledging his inability to pay and his intention to abandon or surrender the mortgaged property, fraudulently removes the work stock, implements and supplies covered by the mortgage and otherwise purposely obstructs the cultivation of the plantation, is thereby estopped from contesting the costs incurred by the sheriff in cultivating the plantation while under seizure.
    It is the right and duty of the sheriff to manage and cultivate plantations while in his custody, if he can provide means to do so. O. P. 661, 283; Lockhart vs Morey, So. Ttop., Vol.- 4, p. 581; Lambert vs. Joffreon, 41 An. —.
    Many irregularities in judicial sales which might suffice to retard a sale, will not avail to annul a sale. Hence, where the defendant, upon a rule to show cause,, interposed no objection to the cultivation of the place by the sheriff, or to the disbursements made for that pui'pose, was present at the sale and made no objection to the sale of the plantation with the growing crop and property placed thereon by the sheriff, he will xiot be heard to complain that such action by the sheriff or sale was illegal, or the sale null.
    All such things as the owner of a tract of land has placed thereon for its service and improvement arc immovables by distinction, and will be covered by a mortgage, though not specially mentioned. The animals and articles enumerated in C. O. 468 are illustrative, and do not exclude others of the same class not specially enumerated. C. O. 468; Moussier vs. Zuntz, 14 An. 26.
    Cows and calves, hogs and an iron safe, placed on a plantation by the owner, for its service or improvement, form a part of the plantation, and are covered by the mortgage. 14 An. 26.
    The mortgage upon movables attached to and forming part of a plantation will not he divested unless sold in good faith, and removed before the seizure.
    Whore no px*ice had been paid the sale will be px'esutned to have been simulated. Fisher vs. Moore, 12 Rob. 95; King vs. Atkins, 83 An. 1057; Ross vs. Keefe, 28 An. 931.
    Third oppoxxent can not arrest the sale of property in dispute without injunction. 4 An. 279; C. P. 339.
    Upon tl^xo failux’e of third opponent to return pi*operty released by him, upon the demand of the sheriff, the release bond is forfeited, and no suit or action on the bond is required to authorize execution against the principal and surety of the bond. Act 170 of 1880, p. 137; 3 An. 279.
    
      
      JjiLce & Lemle contra:
    
    On‘Main and Reoonventionat, Demands.
    1. Tlie proceeding via excutioa lias been changed to a proceeding via ordinaria. 12-Axi. (¡42; 8 N. S. 498, 653; 4 La. 90,307; 16 La. 100; 17 La. 372.
    2. The seizure terminates by reason of such change, the release bond is thereby canceled and the sheriff’s sale annulled. 32 An. 1285.
    8. The sheriff, pending seizure, can only do such acts and make such disbursements as arc necessary for the preservation of the propei’ty seized. O. P., Art. 661; 39 An. 698; 32 An. 135; 23 An. 429.
    4. A rule should be taken and tried contradictorily with parties in interest, to fix and determine the expenditures by the sheriff Cor the working of a plantation and cultivation of a crop thereon. 2 An. 148; 5 N. S. 236; 4 An. 218; 3 An. 276; 10 An. 701.
    5. Property not seized and not advertised cap not be sold at sheriff’s sale. 5 An. 255; X La. 43; 9 La. 542.
    On Sale to Third Opponents. •
    1. The contract has all the elements of a sale, and can not be avoided on suspicion and supposition.
    2. The burden of proof to establish fraud and simulation is on the creditor.
    8. The sale having been made in due course of trade to one not a creditor, can not be avoided, though Rosenthal was aware of the insolvency of Walton.
    4. Plaintiff Learned, having been offered by Walmsley <& Co. all that was due him* has suffered no injury, and is without interest to avoid the sale.
    6.The sale of the products can not be sot aside for the further special reason that W. (4. Walton, as lessee, made such products; that Walmsley & Co. treated and dealt with him as lessee, suing him on the obligations of lease, and that Learned, having been informed of such lease and cultivation by W. tí. Walton* acquiesced therein, anticipating a benefit from such an arrangement, and that Learned and Walmsley are thereby estopped from alleging such products to be-the property of Geo. L. Walton.
    6. That Walmsley & Oo., having judicially declared that a sale had been made to Rosenthal, are thereby estopped from denying and contesting such sale. 26 An. 411; 32 An. 670; 34 An. 310; 19 La. 59S; 40 An. 330; 12 L. 266; 16 L. 150; 16 An. 402; 24 An. 158, 667.
    Forfeiture of Bond.
    1. The evidence shows it was impossible to comply with the demand to produce.
    2. The law did not authorize the sheriff, without order of court and before trial of third opposition, to demand the return of the property.
    3. The plaintiff can not both recover the property and collect the bond. 26 An. 742; 28 An. 403; 30 An. 523.
   The opinion of the court was delivered by

Watkins, J.

The multifarious issues raised in this case require a careful’and concise statement in chronological order, to be clearly understood and properly appreciated.

On the 2d of January, 1889, the plaintiff, Learned, obtained an order for the seizure and sale of the defendant, Walton’s Ashland plantation, with its improvements and appurtenances, in the foreclosure of a special mortgage of $8100 — the act stipulating the pact da non alienando and a waiver of the benefit of appraisement.

On the 10th of January, prior to the issuance of the writ, the plaintiff obtained a sequestration of certain movable effects, which were immovable by destination, and formed part of the mortgaged property, though some of it had been removed therefrom. This proceeding had for object to restore and maintain, intact, the property which was affected by the mortgage, and was ancillary to the executory proceedings — the sequestration only being intended to aid in subjecting the movables to the writ of seizure and sale.

On the 16th of January — likewise prior to the issuance of a writ of ■sale — Walton, the . mortgagor, enjoined and prohibited the sheriff from making a seizure of the mortgaged property, on the ground that the creditor had given him an extension of time, and his action was premature.

On the 23d of January R. M. Walmsley & Co. obtained a like order of seizure and sale against the same property and appurtenances, in the foreclosure of a second mortgage of some $4000; and on the 29th of same month the mortgagor, Walton, enjoined on the ground that the debt had been paid.

The sheriffs’ prooes verbal recites the order of court directing a separate appraisement of the personal property, and the postponement of the sale thereof. It also makes special mention of the sale having been made of the crops growing on and attached to the land at the time, though nothing is stated with reference to any other appurtenances or immovables by destination, forming a part of the property which was seized and sold.

In the meanwhile Learned filed an answer to the third opposition -of Rosenthal, affirming the pendency and full force of his executory proceedings, and his right to have sold, under his writ of seizure and sale, all of the immovables by destination, which are claimed by the third opponent, averring the fraud and simulation of her title [to same, and that it should be annulled and set aside, and praying judgment rejectingher demand of ownership, decreeing that said property be subjected to his “mortgage claim, and that it be sold to pay and .satisfy same.”

Whilst these proceedings were in progress, the seizing creditor induced the sheriff, as a matter of judicial administration, to undertake the pitching and planting of a crop on the plantation, though this appears to have been done under disadvantageous circumstances, as the defendant, Walton, had stripped it of everything which in any way served for the labors of the farm and its cultivation immediately previous to its seizure, leaving it bare. But Learned advanced the necessary means to put farming operations in progress, and a crop was planted by the sheriff’s keepers, and it was well advanced when the sale was made.

In this condition affairs remained until October following the date of sale, when Walton, defendant, filed an extended answer to the third opposition of Rosenthal, and made a reconventional demand on the seizing creditor, Learned, alleging that the sale of the land was null and void for various causes.

R. M. Walmsley & Co. also appeared in various capacities and pleadings, and so did other parties.

On final trial the judge a quo rendered judgment in these cumulated proceedings as follows, viz:

1. Sustaining plaintiff’s sequestration, except as to five head of milch cows, eight head of yearlings, three head of calves, thirty head of hogs, and one iron safe, as to which it was dissolved, they not being considered immovable by destination.

2. Sustaining Mrs. Rosenthal’s third opposition and recognizing her ownership of those items of property only as to which the plaintiff’s sequestration was dissolved.

3. Maintaining defendant, Walton’s, reconventional demand, in so far as to annul the sheriff’s sale to Learned of the Ashland plantation, under the writ of sale.

4. Annulling the sale of William G. Walton to Mrs. Rosenthal of all the property she claimed, except that above mentioned, and certain cotton seed', corn and hogs, and dissolved her injunction restraining the enforcement of her forthcoming bond.

From this judgment plaintiff,.Learned, and third opponent, Rosenthal, alone appeal; the practical effect of which is to eliminate all other parties, and to restrict the issues for our determination to the following, viz: first, the validity of the sheriff’s sale to Learned; second, that of Mrs. Rosenthal’s title from William G. Walton.

Counsel for the defendant, George L. Walton, answered the appeal and prayed for an amendment of the judgment appealed from by allowing him the rent demanded, or by rejecting this demand as of non-suit.

The judge a quo states, in the judgment pronounced by him, that as no evidence was adduced to establish this claim, and counsel for defendant did not refer to it in his argument, it has not been considered ; and for that reason we do not regard it to be a question for our consideration.

I.

Was the sheriff’s sale to Learned a valid one?

The grounds assigned by Walton for its nullity are: first, that the sale was made without an appraisement having been made, and that he had not the legal right to make a waiver of the benefit of appraisment; second, because the creditor, Learned, had, previous to said sale, converted his proceedings via executiva into proceedings via ordinaria, whereby the seizure of the mortgaged property was released, and the sheriff left without power to proceed with the sale.

The counsel of Learned strenuously insist upon the application of the rule, that a previous tender of the amount of the purchase price should have been made by Walton, as a condition precedent to the institution of an action to annul the sale. 39 A. 874, Farquau vs. lies.

Without making any departure from that well-fixed rule, it is sufficient answer to say, that this is not a suit in the ordinary acceptation of that term, but a reconventional demand, which is incorporated in an answer, and the purchaser of the property is the plaintiff in the writ under which the sale was made, and paid no part of the price in cash, as his mortgage was the senior one in rank. In addition to this the judgment revoking the sale recognized his mortgage as still in existence, unimpaired.

It has been frequently decided by this court that a clause in an act of mortgage dispensing with appraisement is valid in law. 18 An. 68; 19 An. 89; 29 An. 210.

The second ground is equally untenable. In neither the petition of Learned for a sequestration, nor in his answer to the third opposition of Mrs. Rosenthal, is there any prayer for judgment in personam against the debtor and mortgagor, Geo. L. Walton, on the mortgage notes. The sole object of the former was, as we said above, to recover and maintain intact, and as a part of the mortgage property, the immovables by destination, and in order that same might be seized and sold under the writ of seizure and sale.

When Mrs. Rosenthal set np a claim of ownership to the identical property which was sequestered, it was perfectly legitimate and necessary for him to protect his right to subject this property to seizure and sale, under the writ of sale, by establishing the fraud or simulation of her title, in aid of his previous sequestration. It was her claim of ownership that rendered this charge an essential issue. Her third opposition created the necessity for this pleading. The third opposition is an integral part of the sequestration upon which it is engrafted.

These are ancillary to the executory proceedings of Learned, and do.not, in any wise, impair their force or effect. On the contrary they are in aid of their efficacy.

Such a sequestration was recognized in Duncan vs. Wise, 38 An. 75, and Mortgage Co. vs. Ralston, 38 An. 595, as legal and proper.

It would be inconsistent to hold at the same time that such ancillary proceedings had the effect of rendering inefficacious, such executory proceedings.

Between the time of the filing of the two injunctions Mrs. Henrietta Rosenthal filed a third opposition in the executory proceedings, claiming the ownership of the mules, cows, calves, yearlings, hogs, wagons, farming implements, etc., by purchase from William G. Walton, the son of the defendant; and she was permitted to release same from the sequestration on furnishing a bond of $2200.

In the meanwhile Walton appealed from the order of seizure and sale on technical grounds, and, in this court, the order was maintained. Learned vs. Walton, 41 An. 233.

On the 16th of- April, 1889, [the two injunctions were dissolved — no evidence having been introduced in their support — and all the property seized was advertised for sale on the 18th of May following, it being described in the advertisement as it was on the 14th of January, when the writ of seizure and sale issued.

The third opponent, Mrs. Rosenthal, was again permitted to release the whole of the personal effects she claimed on furnishing a forthcoming bond for $3750.

As the sale day was approaching, the sheriff gave the third opponent a notification to that effect, and demanded the forthcoming of the property bonded, for sale on that day. Railing to do so, she amended her third opposition, and obtained an injunction against its sale and against Learned’s enforcement of the forthcoming bond, and obtained an order for its separate appraisement and sale. In this the seizing creditor, Learned, appears to have acquiesced, and, as Walton made no further opposition, the naked plantation was sent to sale on the date specified, and the mortgagee, Learned, became the purchaser at the price of $11,000.

Mrs. Rosenthal being a stranger, and third person claiming ownership, and not a party to the Walton mortgage andnotes, it is apparent that no personal judgment could have been asked or rendered against her, and therefore no controversy between Learned and Mrs.Rosenthal could, in anyway, affect Learned’s executory proceedings against Walton. This is evident.

It is only when the creditor and defendant in an injunction suit by his debtor, answers and prays personal judgment against him for the amount of his mortgage claim, that the proceedings via exeeutiva are transformed into proceedings via ordinaria. Our conclusion is that this part of the judgment appealed from is erroneous, and the sheriff’s sale was improperly annulled.

II.

The validity of the sale of William G. Walton to Mrs. Rosenthal depends upon whether or not it was simulated and fraudulent. While it is true that all the things which the owner of a tract of land has placed upon it for its service and improvement, such as working cattle, implements of husbandry, and the like, are immovable by destination and covered by a pre-existing mortgage attaching to the realty, yet the effect of the mortgage is maintained only so long as the condition of immovable by destination continues.

We held in Weil vs. Lapeyré, 38 An. 303, that “a sale in good faith by the owner” of such immovables by destination, “followed b,y actual delivery to the purchaser * * * does liberate the things thus sold from the effect of the mortgage to which they had been subjected, etc.”

The statement of facts on which the title of Mrs. Rosenthal depends is as follows, viz:

In December of 1887, G. L. Walton, the defendant, sold, or purported to sell, to his son, William G. Walton, the immovables by destination, in satisfaction of an alleged claim of $2000 due him as his wages, as manager of the “Ashland” plantation, during previous years. For the year 1888 the father leased the plantation to his son, ostensibly for $3000, and the latter retained the movables on the place, as they were before.

In December, 1888, the son removed a part of this property across the river into the State of Mississippi, and while there, negotiations were opened with Mrs. Rosenthal' (who lived on a plantation in Louisiana about six miles from Ashland), and in consummation of which, it is claimed, she became the purchaser for the stated price of $2600,; and that part of the movables remaining on Ashland was at once removed to her “Union Point” plantation; and the portion that was transported to Mississippi was returned to that place, also.

We have examined the evidence with care, and it has satisfied us that the whole transaction was a sheer simulation. The two important factors in riveting this conviction on our minds are, first, that while the third opponent claims to have derived title from William G. Walton, all the evidence, and particularly the correspondence, shows that George L. Walton, the mortgagor, conducted the negotiations from beginning to conclusion, and neither the name nor pretensions of William G. Walton are therein once adverted to; and second, while all the correspondence points to the consideration as $1000 in cash and six and eight months’ notes for the balance, the parol proof shows that only one note was executed, and it found its way into a bank in Mississippi as a deposit for the account of G. L. Walton’s attorneys.

It thus appears that not only was G. L. .Walton the party negotiating the sale, but the beneficiary of the price.

The onus probandi was on third opponent to show ownership , but her own letters go a long way to show the contrary; and other testimony puts the fraudulent simulation of her title beyond doubt. These demands should have been rejected in toto, and. Learned’s sequestration maintained in toto. The title never passed to Mrs. Rosenthal.

m.

Much has been said in argument and brief in regard to a large claim of over $6060, which is preferred against Walton, defendant, on account of the cultivation of a crop on the mortgaged premises prior to sale, for account of the sheriff, but there is no mention of it in the Judgment appealed from, and the question of its allowance vel non is not properly before us now.

We think there is no longer any doubt as to the authority of a sheriff in proper eases to plant a crop on plantations under seizure. In Lockhart vs. Morey, 41 An. 1165, we said on this subject:

‘ ‘ A vendor seizing a plantation securing his claim has a right to make the advances necessary for the working of the place while in the sheriff’s custody, and to oversee it, with the sheriff’s consent. In both cases he is entitled to recover the amount of the advances shown to have been made and to recover payment for his services.”

To the same effect is Lambeth vs. Sheriff, 41 An. 749; 4 Southern Reporter 581.

Defendant’s recourse is by a proceeding contradictorily taken with the sheriff by rule, as outlined in the Lambeth case, and in Whitney Ironworks Company vs. Reuss, 40 An. 121. The proceeding would be in the nature of an interlocutory one, forming an addendum to the final judgment rendered in the case. See State ex rel. Attorney General vs. Lazarus, 40 An. 856.

The crop that was growing and formed a part of the realty at the date of sale, May 18, necessarily passed with the land to the purchaser;, Learned. The debtor, Walton, did not undertake to prevent its sale, orto require of it a separate appraisement and sale, so as to ■segregate the proceeds of one from the other; and a sale in globo was not objected to by him. But the movables which Learned caused to be placed on the plantation subsequent to the seizure were not expressly mentioned in either the advertisement or proees verbal of sale.

It is questionable whether they formed a part of the immovables by destination, not having been so placed by the owner of the realty. We think the ends of justice would be best subserved by remitting this question also to the determination of the court a qua in connection with the question of cost of cultivation of the plantation and other costs.

It is ordered and decreed that the judgment appealed from be reversed; and it'is now ordered and decreed that the sale of Ashland plantation, to R. F. Learned, be declared legal and valid, and that the sale of the plantation included that of the growing crop. That the sale from William G. Walton to Mrs. H. Rosenthal be declared ■a fraudulent simulation and void; and plaintiff’s sequestration thereof be reinstated and sustained in toto. That third opponent’s injunction, restraining the plaintiff’s enforcement of the forthcoming bond, be dissolved. That all other questions be dismissed as of non-suit, with the rights of all parties fully reserved.

It is finally ordered and decreed that the defendant, Geo. L. Walton, be taxed with all the costs of the main demand and its incidents, and the third oppqnent with all the costs of the third opposition and its incidents; and that third opponent and defendant be taxed with the costs of appeal ratably and proportionately to their respective demands.

On Application for Rehearing.

Watkins, J.

Several defects in our opinion are suggested and in those particulars we are requested to amend our decree or grant intervenor and third opponent a rehearing.

The first one is that until it is first established that the defendant, Walton, is indebted to the plaintiff, Learned, in some fixed amount, the latter has no right to contest the validity of the sale to Mrs. Rosenthal. This is true, no doubt, as a general proposition, but the principle can not be properly invoked here.

The plaintiff held a mortgage for about $8000 on Walton’s plantation and immovables by destination, and sought to foreclose by ex-ecutory proceedings. Not knowing what the land alone would sell for, he sought by sequestration to recover the immovables by destination which the defendant had removed from the mortgaged property, when he was met by Mrs. Rosenthal’s third opposition and claim of ownership of the removed property. During its pendency the land and growing crop were sent to sale and realized $11,000, bid by the plaintiff.

It is the present contention of the third opponent that the proceeds of sale of the land are more than sufficient to discharge the debt with interest, attorney’s fees and all costs, and that there will be no necessity for the sale of the movables by destination or the collection of the forthcoming bond; and that the question of the simulation of the sale to Mrs. Rosenthal should be deferred. This may or may not be'so. It is quite impossible for us to decide that question now. A question of costs was non-suited and remanded for the court a qua to determine on rule. When it shall have determined the question of costs, nothing will remain to be done but to cast up a settlement and ascertain how the balance stands, for or against defendant. If nothing remains due no further proceeding will be entertained looking to the enforcement of the forthcoming bond or the sale of the movables by destination.

But we need not disturb our decree. It will suffice to preserve the status quo in respect to both, and direct that no further proceedings be taken until the amount of costs and charges is determined; provided the property be restored to the custody of the sheriff or otherwise satisfactorily accounted for.

The second point is that the third opponent was not properly put in default, no order of court having been granted directing her to return the property for sale; and if the demand made by the sheriff was sufficient, it was, under the circumstances, practically impossible for him to have returned it by the day of sale. We do not understand that a forthcoming bond operates an absolute release of property from seizure. The law merely extends to the claimant the grace of keeping the property in his custody, pending third opposition contesting the seizure, merely to economize cost.

The only effect of putting the claimant in default is to make the bond exigible. For this purpose a notification by the sheriff is sufficient. An order of court was unnecessary. If, for any reason, it is out of the claimant’s power to return the property on the day fixed for its sale, the execution of the bond may be resorted to, and any other property of hers seized and sold; but it would be competent for her at any time before sale of property under execution on the bond to return the property bonded, and thus abate further proceedings. The date for the return of the property is ordinarily fixed in the bond, and must be rigorously adhered to on the penalty of proceedings of forfeiture being commenced instanter; subject, as we have just stated, to the claimant’s or debtor’s subsequent return of the property released.

The mortgage creditor was entitled to sell all of the immovables by destination under his order of seizure and sale, or under an execution on the forthcoming bond. We have recognized his rights so to proceed, but have restrained all further proceedings until the amount of cost is ascertained.

In the instant case the third opponent’s contention is that as the property in question was on Union Point plantation, forty-eight miles distant from the sheriff’s office, two days’ notification was insufficient, because in the then condition of the roads two weeks’ time would have been required to effect a delivery. It must be borne in mind that third opponent’s injunction only restrained the sheriff from declaring the bond forfeited. Evidently there has already elapsed much more time than was requisite for that purpose, and our decree dissolving the injunction will operate a forfeiture by judicial decree if the property has not been surrendered. But if the released property is not surrendered the creditor can proceed on the bond. One, or both, must respond to the balance due the creditor after the costs have been ascertained, and the proceeds of sale of the land have been first applied to the amount of the principal, interest and cost of the debt.

The third point suggested is, that because W. G. Walton leased Ashland plantation for the year 1888, with the knowledge and full acquiescence of Learned, it necessarily follows that the products raised by him on that plantation during that year are his, and his sale thereof to Mrs. Rosenthal was valid.

In this we think third opponent’s counsel is correct. This lease 'is not attacked in these proceedings by Learned. The possession of W. G. Walton in 1888 is substantiated by proof. The products raised on the place are presumably his and do not form a part of the mortgage debtor effects, which was placed on the mortgaged property for its service and improvement; and hence same does not constitute any part of the immovables by destination. It ought therefore to be declared not subject to the seizure and sale, and that plaintiff has no right of action against it.

In this respect our former decree should be amended. It was not our intention to impose on the defendant particularly, or on any other party, the duty or responsibility of obtaining a rule for the ascertainment and taxing of costs. We made merely a suggestion. We will be more specific and embody it in a supplemental decree.

It is therefore ordered and adjudged that our decree herein previously rendered be so amended as to declare that all products raised on the Ashland plantation in 1888 are not immovables by destination, not subject to plaintiff’s mortgage, and that same shall be released to the third opponent.

It is further and finally ordered and decreed that the right of any and all parties is reserved to proceed by rule against proper parties to have costs, other than those fixed in the statutory fee bill, taxed according to law, and that during the pendency of the proceedings to tax costs, all further proceedings in the enforcement of the forthcoming bond or in the sale of the property bonded, be stayed, that in all other respects our former decree remain undisturbed and that a rehearing be refused.  