
    No. 78.
    Michael and Henry Boyce v. Thomas C. Hunt et als.
    Where a party sells a tract of land on time, and takes the notes of the vendee, secured by mortgage on. the land to secure the payment of the price, and the vendee, before the price is paid, sells the same land to anotheb party, who assumes the mortgage in favor of the original vendor, the first vendor may have the land seized and sold to pay his mortgage, and the second vendee cannot set up, by way of exception, .that the suit be dismissed as to him.
    The original vendee of the land may be sued on the notes, and the mortgage enforced on the land of his vendee in the same suit.
    A PPEAL from the District Court, Parish of De Sotó, Weems, J.
    
    
      Earn <& Wemple, for plaintiffs.
    
      B. J, Bowman, for defendant,
    
      
      Brief of Elam & Wemple, for plaintiffs and appellants.
    
    
      * * Petitioners prayed for personal judgment against Hunt <fc Gillespie, as the makers of the notes, and against Whitworth & Poag and Bonds, on their stipulation, that their mortgage be recognized and enforced, the lands be seized and sold in satisfaction thereof.
    Bonds alone appeared, and put in the following exception: “In this case the defendant, James Bonds, excepts to the plaintiffs’ petition upon the following grounds, viz: That the cause of action against T. C. Hunt is entirely distinct and separate from that set forth against this defendant, the rejection or the success of the one, not involving the rejection or success of the other, and the same demands being separate and distinct, and against separate parties cannot be cumulated. Wherefore, the defendant prays that plaintiffs be ordered to elect which of said demands he will prosecute, and in the event of his refusal to elect, that this suit bo dismissed, and for costs and general relief.
    Upon this exception, the following order was entered by the Court: “ October 13th, 1866.”—“Exception sustained.”
    If we understand this exception, it is to the effect that the personal and the hypothecary action cannot be cumulated against Bonds, if so, these actions cannot be maintained against him while the suit is pending against Hunt. The first question to be considered is, whether Bonds and Whitworth & Poag are personally liable to these plaintiffs, by reason of the stipulation already referred to in the act of sale from Hunt to them in favor of plaintiffs; and if so, what is the character of the obligation thus incurred by them. Articles 1884 and 1896 of the C. C., expressly provide that a stipulation made by one of the parties to a contract in favor of a third person, whereby he agrees to pay a sum of money or to give a particular thing is binding, although the party in whose favor the stipulation is made is no party to the contract, and when accepted by him the stipulation becomes irrevocable. The stipulation of Bonds and Whitworth & Poag in favpr of the plaintiffs, having been accepted by them by the institution of this suit become irrevocable, and gave rise to the real and personal action they have brought and can be cumulated, and all the parties who are bound for the debt may be joined in the same action, whether the obligations of the parties are in solido, or several; if in solido, the plaintiffs may proceed against all of them in the same suit, if in the same jurisdiction; and if several, as is the case, so far as Bonds and his co-obligors, Whitworth & Poag are concerned, they must all be joined in the same suit. And it may be proper to observe further, in this connection, that they are third possessors of the whole tract of land hypothecated, purchased by them in indivisión, and it was necessary they should be joined in the same action, even if the hypothecary action had alone been resorted to, reserving their right to institute a personal action in the event the hypothecated property should be insufficient to pay the debt. Bonds and Whitworth & Poag, we think we have shown, are personally responsible for the debt sued for, as much as they had been parties to the contract of mortgage áb initio, because they made themselves parties to it in the manner we have already shown.' If this position be correct, how it can be said that the cause of action set up against Hunt & Gillespie and Whitworth & Poag, is distinct from that set up against Bonds, and therefore cannot be cumulated, we are at a loss to perceive.
    We repeat it, if these third possessors are liable to plaintiffs, personally, because, although not parties to the act of mortgage at the time it was passed, they having made themselves 'so subsequently, then it follows that if we could have cumulated the personal with the hypothecary action against Hunt & Gillespie, if they had not parted with their title and possession, we can join all the parties to the contract in the same suit, and cumulate both demands against them.
    Will it be pretended in the case we have assumed, that we could not pray for a personal judgment against Hunt & Gillespie. The recognition of our mortgage and privilege, and that the land be seized and sold to pay the debt. That'we could have elected to proceed by personal action against all these parties or by hypothecary action seems to be conceded; but it is said, although this is true, the remedies given by the law must be exercised separately, and not cumulatively or such at least, it seems to us, is the line of argument counsel’s exception must force him to assume, if we apprehend him.
    If the judgment of the lower Court be affirmed, sustaining the exception, it must be on the ground that although all these parties are liable for the debt in person, and the land is liable to our hypothecary action, yet we must elect to pursue one remedy at a time, such a ruling would lead to circuity of action, which is opposed to our system of pleadings and the policy of the law, except when it is necessary to enable a party to mate his full defence on the merits.
    In conclusion, we submit that the following authorities settle all the questions of law and practice raised by the pleadings in this case, and support the views we have submitted. See C. P. Art. 35. C. C. Articles 3366 and 3368. Twichell v. Andry and Wife, 6 B. 407. Mitchell v. Cooley, 5 B. 241. A. Bonnafe & Co.v. John andE. MoLane, 5 A. 225.
    
      Brief of B. J. Bowman, for defendants and appellees.
    —The appellant has correctly stated the facts which has given rise to this litigation.
    Upon these facts he has cumulated two distinct actions: a personal aetion against the appellant, on his assumpsit in favor of the plaintiffs, and a hypothecary action against him as third possessor.
    The exception of the appellant is, that these actions cannot be cumulated.
    We submit it as axiomatic, that no two actions can be cumulated unless the rights involved by them are homogeneous.
    In these, they are distinct and dissimilar. If sued upon, his assumpsit to the plaintiffs; the plaintiffs occupy to him the same position as their vendor, Hunt, and must warrant against all, the mortgages which Hunt left upon the land. 9 An. 195. “A purchaser, who, as part of the consideration, stipulated with his vendor, to pay a debt due by him, may, when sued by the person to whom the debt was due, set up the same equities that he has against the vendor himself.”
    The hypothecary action cuts off these equities, and therefore does not involve the same or even similar rights.
    Again: as third possessor, the appellee has a right to the increased value which his improvements have given the land mortgaged. The 3370 Art. of the C. 0., after declaring his liability for deteriorations caused by him declares, “but he can claim for his expenses and improvements only to the amount of the increased value, which is the result of the improvement made.”
    The interpretations we have placed upon this article are sustained by Judge Porter, in the case of Lanusse v. Lanna, 6 N. S. 114, as clear and unequivocal, and the only difficulty presented in that case “ was how this value is to be ascertained. ”
    In the direct action on the appellee’s stipulation in favor of the plaintiffs, the appellee is entitled to demand of the plaintiffs that he should freo the lands from the incumbrances placed on it by Hunt, or give him security against them, and warrant his title against all evictions.
    In the hypothecary action, the appellee would have the right to demand payment for the increased value given the land by the improvements made by him. Here then are two distinct and different rights and liabilities, as distinct as an action on a promissory note and a petitory action. If then our axiom, “that two actions cannot bo cumulated unless the rights involved are homogeneous,” be an axiom, we submit that the exception was well taken, and the judgment of the District Court ought to be affirmed.
   Labatjve, J.

This suit is brought on eight promissory notes, amounting together to $20,123 51 in principal, executed by Hunt & Gillespie in favor of the plaintiff, for the price of a tract of land sold by plaintiffs to said Hunt & Gillespie, on the 13th September, 1858, the land remaining specially mortgaged to secure the payment of said notes. On the 2d day of June, 1862, George E. Gillespie, the co-proprietor of Hunt, reconveyed his undivided half to the said Hunt, who obligated himself, in part consideration for said sale, to pay the mortgage in favor of plaintiffs; and afterwards, on the 23d April, 1863, said Hunt resold the whole tract of land to John J. Whitworth and John Poag, composing the firm of Whit-worth & Poag, and James Bonds, in the following proportions: One undivided half to Whitworth & Poag, and the other undivided half to James Bonds. The said purchasers, as a part of the price, assumed the mortgage debt due the plaintiff.

The plaintiffs prayed for a personal judgment against Hunt & Gillespie, the original purchasers and makers of the notes, and against Whitworth & Poag and Bonds, on their assumption of the mortgage debt, and that their mortgage be recognized and enforced, the land seized and sold.

James Bonds alone appeared, and filed the following exception:

“In this case the defendant, James Bonds, excepts to the plaintiffs’ petition, upon the following grounds, viz: That the cause of action against T. O. Hunt is entirely distinct and separate from that set forth against this defendant, the rejection or the success of the one, not involving the rejection or success of the other, and the same demands being separate and distinct and against separate parties, cannot be cumulated. Wherefore, the defendant prays that plaintiffs be ordered to elect which of said demands they will prosecute, and in the event of his refusal to elect, that this suit be dismissed, and for costs and general relief.”

This exception was sustained, and the plaintiffs appealed.

We are clearly of opinion that the Court erred. The defendants are hypothecarilybound as holders of the mortgaged property, and personally bound under their assumption of the mortgage debt due the plaintiffs. We understand the suit to be that the defendants pay the mortgage debt due the plaintiffs, and that the mortgage be recognized, and the land seized and sold to pay said debt.

It is therefore adjudged and decreed, that the judgment appealed from be annulled and avoided; it is further ordered and decreed, that the exception be overruled and the case remanded, to be proceeded with according to law, and that the appellee pay costs of appeal.  