
    Same Case—Application for a Re-hearing.
    Where a.mprtgago contains the pact.cie non alienando, one, who subsequently purchases the. property from the mortgagor, cannot claim to he in any better condition than his vendor, nor can he plead any exception which the latter could not. Any alienation in violation of the pact da non alienando is null, as to the creditor.
    Where a creditor, whoso claim is secured by mortgage, may proceed against the same person by a personal action or by executory proceedings, the institution of proceedings viá execuliva will interrupt the prescription running against the personal action -, and this interrupt iion is continuous, preserving the personal action while the excutory proceedings are being prosecuted; and vice versa. And wliore the mortgage contains the pact denon alienando, a purchaser from the mortgagor, subsequent to the mortgage, will he considered as standing in the place of the mortgagor, and as subject to the same liabilities.
   ON an application for a rehearing, made in this case by Steele, for the oppo-i. nent, the judgment of the court (King, J. absent,) was pronounced by

Slideux., J.

A.n application for a rehearing has been made in this case, in which, among other points presented in his first brief) the appellee particularly insists upon the considerations, that he stands as the vendee of Cqmpton, who had no participation in the. injunction, and was at no time a party to the proceedings ; and that the attempted exercise of the hypothecary right had no effect upon the right of personal action for the. debt. The doctrine is invoked that when mortgaged property has passed into the hands of a third person, the interuption of the personal action against the debtor does not interrupt the prescription with regard to the third possessor; and, reciprocally, that the interruption of the hypothecary action does not interrupt the prescription of the principal.

The correctness of the doctrine, in ordinary cases, may be conceded. But the, circumstances of the present qase, are peculiar. In addition to the professional and personal connection of Stockton with this case, during the protracted delay which is now invoked for the purposes of prescription, there is a feature in the, case which is decisive against his right to avail' himself of his newly acquired character as the vendee of Compton, and to treat the personal and hypothecary rights as distinct and-independent.

We have already shown that Stockton was fully- acquainted with the antecedent conveyances and mortgages. They were not only-recited in the deed from Compton, but in the pleadings in the case; and, indeed, the appellee conceeds his entire, acquaintance with the titles, and disclaims any-benefit which ignorance could confer- , Now the mortgage from M’ Call contains, as stated in our previous opinion, the covenant de non alienando. The language is, ‘thereby confessing judg-, ment in favor of said J. Stanbrough, curator, as. aforesaid; for the said sum of money, to be paid with interest as aforesaid, and covenanting not to dispose of said lands to the prejudice of this mortgage.”

The effect of-- this covenant has been frequently- considered, although never, as we believe, with reference to the particular point now under consideration.

In Nathan v. Lee, 2 Mart. N. S. 33, it was-said that a mortgage creditor, who acts on a mortgage which contains in his favor an agreement of the debtor, not to alienate, is not bound to pursue a third possessor by tho action of mortgage,, but may have the hypothecary property seized; vid executivd, as if no change had taken place in its possessors; because any alienation or transfer made in, violation of the pact de non alienando is, ipso jure, void, as it relates to the creditor. To consider such a pact as entirely nugatory, and unavailing, would be contrary to a fundamental rule in the construction of contracts and statutes—that full effect should be given to all thpir-prqyisions, whenever it can be done without falling into absurdity. Judge Martin also said in that case that, the effect of the pact de non alienando was not impaired by the provisions of the Civ. Code ofl808. The strong language which he uses as to the effect of the pact, is supported by the Spanish authority to which he refers. Febrero observes: “ En virtud de este pacto es nula la enagenacion, y se contempla la cosa hipotecada en poder del, deudor para el fin expuesto, según queda sentado en el num. 68.” And in the section-referred to,he says; “Y se previene que contra este no pasa el derecho do exocutai', aunque proceda de sentencia declarada en coza juzgada, y la obligación son personal ó real; excepto que intervenga el pacto referido, que entonces como no se transfiere su dominio M tercero poseedor, ya sea por titulo oneroso ó lucrativo, antes bien es nula la enagenacion, so contemplan los bienes enagenados de esta forma como existentes en poder del deudor principal y verdadero, porque esta poi ningún acto, ni contracto puede debilitar, ni deteriorar la condición de su acreedor. ” Febrero, Adicionado, Librería de Escribanos, part 1. ch. 7, §4, nos. 89, 68.

In Donaldson v. Maurin, 2 La. 39, the eífect of the pact was again considered ; the case of Nathan v. Lee, was affirmed; and it was also hold that its effect was not impaired by the repealing act of 1828. It was considered as springing, not from legislation, but from the agreement of the par-ties. “It is an universal principle,” said the court, “that effect must be given to all the parts of a written contract or agreement, and meaning to all its stipulations and phrases, unless such a construction leads to absurdity.” “It is also a general rule that, .owners of property must be presumed to know the titles and the encumbrances under which they hold.”

In Murphy v. Jandot, 2 Rob. 378, the court said : The mortgage to J'.andot contains the clause de non alienando, and consequently no transfer of the property would effect his right to proceed summarily against it, as if still belonging to the mortgagor. So in The Gas Bank v. Allen, 4 Rob. 389; Dodd v. Crain, 6 Rob. 60. Ducros v. Fortin, 8 Rob. 167.

Hence, then, it results that, Stockton, holding under M’Call and well acquainted with his title, is estopped by the pact de non alienando from claiming a better condition than his author, and pleading an exception which M’Call could not have pleaded. Let us see then whether, under the circumstances, M’ Cull. could assume the grounds which Stopkton attempts to occupy, and assert that the debt and mortgage wore extinguished by prescription.

By the pact de non alienando, M’ Call was forbiidden to alienate to the. prejudice of the mortgage; the plaintiff was entitled to proceed by seizure and sale, as though he had not sold; and did so proceed, and gave him notice.. Can a mortgagor in possession (and, by virtue of the pact, M Call is deemed still: in possession,) protend that proscription runs against the debt itself, while the creditor is exercising tho accessary right of mortgage. This question may be. answered in the language of D’Argentrée. “Sed de Ms actionibus qua; se habent pose, ut accessorioe et principalis, ut personalis ethypothccaria, justa dubitatio esse, posset, nisi exprossó de eo esset constitulum, 1. fin. C. do Annal. Except., quó traditur una contestatione aut citationo in alteró, fieri in utraque interruptionem. Sed etsi in isto est aliquid, tamen in eo non sunt omnia. Nam cum hoc sic staluitur, preesupponitur personalem et hypothecariam adversus eandem personam competeré, et ideó alteram alteri disjunctam accessoria ex causó debitó eadem, et. si diversa! qualitatis obligationes sunt. §ecus accidit, cúm personalis in personó obligati aut hosredum resedit, et hypotheca in extraneum est translata, quo ensu dubium non est, utramque per principalem esse; unde evenit, ut prcescriptionis-. témpora non sint eadem- Ideoque apparet mutatione persona! mutari prescription-urn conditionos ot extraneum de facto, suo non tenería sed in rem persecutionem esse, et quee advorsfrs cum actio intordatur, non esse amplius accessoriam ad; personalem. Quare hoc casu censeo quod interruptum ftterit adversfrs principalem, extraneo nonobesse, cujus aliudjus et causa est et posse ex capite suo preos-. criptionom perficere,” Art. 266, p. 1160., no. 9; cited in Troplong, Prescrip., &ote to no. 659.

Applying these principles to, the case before us,, the prescription of the personal action Was interrupted by the hypothecary proceeding, the creditor being competent to exercise both of these against the same person, by virtue of the pact de non alienando.

, This reasonable rule is sanctioned by the Code, from which, as we have seen) D’ Argentine derived it. “Qui obnoxium suum in judicium clamaverit, et libelInm conventiomis ei transmiserit, licet generaliter nullius causas mentionem habentem, vel unius quidem specialiter, tantummodo autem personales actioneS) Vel hypotheearias continentem, nihilominus videri jus suum omne earn in judicium deduxisse, et esse mtelrupta temporum curicula: cum contra desides homines et sui juris contemptores odiosos exceptiones opposite sunt.” Code, lib. 7. tit. 4Ó.

The rule harmonizes with the theoiy of prescription, Which has its basis in the presumption of renunciation on the part of him who neglects his rights, and Which presumption cannot be entertaiiied against a party who is struggling to collect a debt, and is not sui juris conl&mptor.

The interruption then created by the institution of one spábies of action must also be considered as continuous, and as preserving the personal action while the hypothecary action is in course of prosecution. To this effect is the language of Dunod, who, while he sanctions the general rule invoked by the appellee, recognizes the exception in a case like the present. L’ action personelle intentée contre le débiteur, n’empeche pas le tiers possesseur de l’hypothóque de la prescrire; et vioissim, quoique 1’ exercise de l’une conserve l’antre lbrsqu’oiles concourent dans un memo sujet; pnreequ’en ce dernier cas elles sont jointos et acceesoires Tune á 1’autre, au lien qu’au précédent olios sont principales et indópendantes. Rehearing refused)  