
    No. 1376.
    Thiburce Norres et al. vs. David Hayes, Administrator, et als.
    1. This court has frequently held that the current of prescription on a judgment for money may be interrupted or suspended in other modes and by other means than by the peculiar statutory action provided by the Code.
    2. In case the plea of prescription of ten years is urged against a judgment, and ‘ the trial of the plea is had in the court a qua on the face of the record, the judgment sustaining the plea may, for the purposes of justice, be annulled and the cause remanded.
    PPEAL from tlie Twenty-first District Court Parish of Iberia* Mouton, J.
    
    
      Walter J‘ Burke and T. J. Foster tor Plaintiffs, Intervenors and Appellants :
    Unconditional heirs may institute real action, in their own name, for the protection of the estate and of themselves. They are necessary parties. The administrator may or not be made a party. This is especially the case when the suit is to set aside a tax sale, of mortgaged property, of a debtor when it is admitted • not only that the administrator is negligent, but has fraudulently colluded with the tax purchaser and others to defeat the rights of the estate, and where also it is admitted, or proven, that the sureties on his bond are insolvent. G. P. 4, 41, 42, 61, 62, 68,123, 15; Gross on Pleadings, pp. 44, 43, Sec. 42; 2 An. 782; 27 An. 649; 14 An. 156, 777; 7 An. 136; 6 L. 97; 24 An. 278 : 30 An. 1099; 31 An. 134; 33 An. 1010; 38 An. 238.
    It being the duty of an administrator to prevent prescription from running, he is estopped from pleading proscription on his own debt. I-Ie can not sue himself. He is forbidden to occupy the dual position of plaintiff and defendant in same suit, and a judgment so obtained is null. Marcade on Prescription, p. 164, II; p. 298, section 2; UVII; 8 R. 488; 32 An. 1037; 11 R. 183; 12 R. 155; 23 An. 683; 36 An. 408; 37 An. 741, 6.
    As to suspension of prescription, it matters not what may be the form of the debt. Interruption may take place even when the debt is in form of a judgment, as in all other cases. 30 An. 1071; 33 An. 297; 34 An. 413; 37 An. 769; 36 An. 408.
    The obligation of the sureties is to protect the estate against the administrator’s negligence. For the reasons applicable to administrators, they can not avail themselves of his negligence and are estopped from pleading prescription.
    As to the co-debtors of the administrator, inasmuch as the administrator can not sue himself, he can not sue them. See authorities above, especially the 36 An. 408.
    Registry of a judgment gives a judicial mortgage. But as to the vendor’s lien and special mortgage its inscription has no effect as to third parties. The debt merges into the judgment; not so the lien and conventional mortgage, which continues to exist independent of it. If the act of sale and mortgage has been duly inscribed and subsequently reinseribed as it was originally, it matters not that the judicial mortgage perempts, their effect will be preserved, unless the debt be extinguished. 22 An. 402; G. O. 3369 ; 34 An. 313; 42 An., Lelanne vs Payne, decided 10th February, 1890.
    
      A tax purchaser, who has fraudulently colluded with the administrator to defeat the rights of the estate, can not, in support of the sale to him, plead the peremption of a mortgage.
    - L. O. Hacker for Defendant and Appellee:
    1. A judgment for money prescribes in ten years, unless revived within that period. O. O. 3547; 33 An. 366.
    2. Any person interested in a judgment may revive it in the manner provided by law. 23 An. 579, 594 and 5S7; C. O. 3547.
    3. The reinscription of a judgment does not operate as a revival, and it does not tend to interrupt tho course of preseription.
    4. Preseription may bo interrupted by other means besides that mentioned in Art. 3547, O. C., but this interruption of the prescription of a judgment must bo by one of the modes provided in the Civil Code.
    5. The reinscription of a mortgage, when tho principal obligation, which it is • designed to secure, is extinguished by any of the methods mentioned in the O. C., is a useless ceremony. The extinction of the principal obligation carries with it that of the accessory. O. O. Bill, 3284, 3285; 30 An. 366.
    6. A principal obligation is indispensable to the existence of the accessory, without which it becomes a lifeless form. C. C. 3285.
    7. Where one styling himself a judgment creditor institutes an action to annul a tax sale of an i2nmovable, he must be in a position to enforce his judgment; otherwise he has no interest in the subject matter of the suit. 14 An. 301.
    8. The right of vendor to rescind tho sale for non-payment of the purchase price prescribes in ten years from the maturity of the obligation. 34 A21. 989.
    9. When a vendor has brought suit and obtained judgment against the vendee, for the purchase price, he waives the right to the resolutory condition. Pothior pn Obligation, Volume 2, Polio 207.
   The opinion of the court was delivered by

Watkins, J.

This appeal is prosecuted by plaintiffs from an interlocutory judgment of the District Court sustaining defendants’ peremptory exception of no cause of action, and ten years’ prescription, and dismissing the suit, which has for object the revocation of a tax sale.

On the 23d of January, 1869, John Hayes executed a title to his three sons — David, William and Malachi — jointly to the land which is the subject matter of-this litigation for $15,000, on one, two, three, four and five years’ credit; and the several vendees executed ñve notes of $3000 each, bearing 8 per cent, per annum interest from date of sale, stipulating a special mortgage in the act and the retention of a vendor’s lien as securing the payment of the price, the act being duly recorded in the book of mortgages, and thereafter reinscribed.

In December following John Hayes, the vendor, died, and David Hayes, one of the vendees, qualified as administrator of his succession. When the last of the series of notes went to maturity, Hayes, administrator, sued them to judgment (it bearing date March 25, 1875), and it was also duly inscribed and reinscribed in the mortgage office, but never thereafter formally and by judgment was it recorded.

During the years 1886 and 1887 Malachi and William conveyed to A. L. Hayes their two-thirds interest, and David his one-third interest in the land to Hamilton Derouen, the defendant, the title thus vesting in A. L. Hayes and Hamilton Derouen jointly.

In 1887 the land was adjudicated to Derouen, who claims to be the sole owner.

Plaintiffs’ contention is that, as a portion of the heirs of the deceased vendor and mortgage creditor of other heirs, they are entitled, on making the administrator party, to institute suit in their own name for the revocation of the tax sale of the mortgaged property and for its restitution to the mass of the succession for purposes of administration.

Their averments against the vires of the tax sale in substance are, inter alia, that the administrator illegally and negligently permitted the property to be sold at tax sale to the defendant, who was his son-in-law, for the vile price of §180 of delinquent taxes, and to the detriment of the large mortgage claim due to the succession he was administering.

Further, that said administrator, subsequently to said sale, fraudulently colluded with said tax adjudicatee and endeavored to defeat the succession mortgage on the property for which he was personally bound by making, to his alleged confederate title to his one-third interest in the land.

It is to this action that the defendant’s exceptions are directed; and the insistence of their counsel is that plaintiffs’ petition does not disclose that they have “sufficient interest in the subject matter of this suit to give them a right of action or to authorize the court to grant the judgment they ask; and because whatever might have been their rights, they are barred by the prescription of ten years.”

For the purpose of fully stating defendant’s exceptions, we quote from his brief the subjoined explanatory statement, viz:

‘‘ The exception challenges the right of plaintiffs to interfere in or-to question the validity of the tax sale, on the ground that they have no legal interest, and have ceased to be creditors; that the mortgage which they have inscribed is extinguished by the prescription of the principal obligation, which it is designed to secure.”

It is well to note here that, pendente lite, a suit previously brought by the plaintiffs, for the amotion of David Hayes, administrator, was tried and judgment rendered against him, and a new administrator was appointed; and he intervened in the suit and joined the plaintiffs. Hence, whatever question there might have been of the right of a portion of the heirs of a deceased to bring such a suit as this, it was answered by the intervention of the new administrator. The residue of the question rests solely upon the effect to be given defendant’s plea of ten years' prescription against the judgment on the purchase notes, of date March 25, 1875. It was sustained by the ' judge a quo, and the suit dismissed, because, as the debt had apparently perished by prescription, the re-inscription of the mortgage was unavailing. Dawson vs. Thorp, 39 An. 366.

The trial was had and judgment rendered on the face of the records. No evidence dehors the records was offered. But we have frequently held that judgments may be preserved from the effects of prescription and the current of prescription interrupted in other modes and by other means than by “ the peculiar statutory action ” authorized by the Civil Code, 3547. Succession of Patrick, 30 An. 1071; Calhoun vs. Levy, 33 An. 1296; Levy vs. Calhoun, 34 An. 418; Lalanne vs. Payne, 42 An. 152.

In the instant case there arises no question as to the relative rank of mortgages. It is merely a suit brought by heirs of a conventional mortgagee for the purpose of restoring the mortgaged property to the succession. The mortgagors are heirs, and one of them was the administrator. The'claim well nigh aggregates $30,000. The demands of the plaintiffs strongly appeal to the court for the exercise of its equity powers. It may be that on a trial of the merits the plaintiffs will be able to show an interruption of prescription; and we think it but just that we should afford them an opportunity to do so.

For this purpose the judgment must be reversed and the cause remanded to the court a qua.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered that the •cause be remanded for further proceedings, according to law, and that the defendant and appellees be taxed with the cost of appeal and those of the lower court and await final judgment.

Mr. Justice Breax recuses himself, being of counsel.  