
    MOORE vs. ALLAIN.
    EASTERN DlST.
    February, 1837.
    APPEAL FROM THE COURT OF THE FOUltTH JUDICIAL DISTRICT, THE' JUDGE OF THE DISTRICT PRESIDING.
    In a petitory action, the defendant in possession, who declines title and indicates the name of his lessor, may be dismissed, and the person claim- ' ing title must be made a party. " ,
    The hypothecary- action is a proceeding in rem, and when brought against the mortgaged property, it follows it as a real right into whatever hands it may be found. The third person claiming it must either give up the property or pay the mortgage debt.
    The person in the occupancy of mortgaged property, cannot get himself discharged from an hypothecary action, on indicating the name of his lessor. He may notify the latter to appear and defind the property.'
    The_ occupant or tenant of mortgaged property is not liable for costs'in an hypothecary action against it. It is a proceeding in rem, and the property must pay. ’ ,
    This is an hypothecary action. • The plaintiff alleges that one John Nicholls was appointed his tutor in April 1819, and failed to render an account or pay over the amount due to him. That he obtained a judgment against his said tutor for the sum of seven thousand nine hundred and eight dollars, upon which execution issued, and was returned no property found.
    He further alleges, that said Nicholls was the owner of a tract of land in the parish of Point Coupee, at the time of his appointment to the tutorship, which is now in the possession of Sosthene Allain, and is tacitly mortgaged for the amount of his debt and demand.
    He further alleges, that he has demanded payment of the said debt of Nicholls, the principal debtor, more than thirty days, and given notice to the defendant, Allain, to pay it or give up the mortgages, more than ten days previous to the institution of this suit.
    
      He prays that the defendant be cited according to law, and that the land be seized and sold to satisfy bis demand, with interest and costs.
    Allain answered and disclaimed title to the property. He further averred that he had leased it from James Erwin as the agent of Mrs. Yeatman, who resides in the state of Tennessee.
    He prays that a curator ad hoe be appointed to defend the interests of said absentee, as his warrantor and owner of the property, and that he be dismissed.
    A curator ad hoc was accordingly appointed to the agent of Mrs. Yeatman, and the cause continued for six months. ,
    The evidence fully sustained the plaintiff’s demand, and the owner of the land not appearing, judgment was rendered in favor of the plaintiff, ordering the mortgaged premises to be seized and sold to satisfy his demand, and that the defendant Allain pay costs. The latter appealed.
    
      Bradford, for the plaintiff and appellee.
    1. The notice to Allain, who is in possession of the mortgaged property, was given more than thirty days before the institution of this suit, and after a previous demand and judgment regularly obtained against the common debtor. He was therefore bound, either to pay the debt, or give up the mortgaged premises to be seized and sold to satisfy it.
    
      2. He cannot contest the proceedings in the Probate Court, in which the plaintiff, by a judgment, liquidated his demand against Nicholls, his former tutor.
    . 3. The plaintiff was only bound to proceed against Allain who is in possession, because the real owner of the mortgaged premises, lives beyond the limits of the state. The former was his tenant or agent, and there was no necessity for citing him in warranty; but had he been disposed to have contested the case, could have done it. Code of Practice, article 43.
    4. If an absentee having a tenant in possession, who mortgages property in this state, can procrastinate by claiming to be called in warranty, there is an end to the executory process. The party defeats the law by his own act.
    5. There was no necessity for recording the tutor’s bond Pai''s'h °f Point Coupee, where the property is situated. The appointment of the tutor is the foundation of the mortgage, which is given by law, and exists without being recorded. Louisiana Code, 3298.
    
      Mitchell, for the defendant,
    maintained that the owner of the property should have been brought in and made a party to this suit. The defendant was merely the possessor and tenant of the owner, and was not bound to defend on disclaiming title.,
    2. The judgment is erroneous, independant of the want of the true party in interest. It should have been in the alternative or conditional, for the sale of the property, if the owner did not pay the debt.
    3. The appointment and surety bond of the tutor should have been recorded in Point Coupee, where the land lies, to operate as a mortgage on it against, and in the hands of a third person. Louisiana Code, 3298, 3314.
    4. If a mortgage ever existed on this property, it has been long since extinguished as regards third persons. Louisiana Code 3333.
    
      Chinn, on the same side.
    1. Moore having obtained a judgment against his curator, who was appointed in 1819, in Feliciana, instituted this proceeding to subject some lands lying in Point Coupee, to the satisfaction of his judgment, by reason of a lien,resulting from the appointment of his tutor.
    2. About 1824, by authentic act, Nicholls, the tutor, conveyed the estate in controversy, to James Erwin, and it is now, as it appears by the record, holden by Mrs. Yeatman, and by her agent, Erwin, leased to Allain.
    3. The proceeding is in the ordinary way, against Allain only, and an order of sale pronounced by the court, to reverse which, this appeal is prosecuted.
    
      4. The decree upon its face shows that the estate had been transferred to Erwin. Allain by his answer admits nothing, but simply disclaims any right to the property, and prays that the proprietor may be cited in warranty, or called to respond.
    Was not Mrs. Yeatman a necessary party, and was she not the possessor, which the law contemplated should, or might be sued ?
    5. The suit may be against a third possessor, although he hav§ not the paramount title, but he must be a possessor claiming for himself, and in his own right. " The law never could have contemplated that one could be deprived of his rights of possession or property, by a suit in the ordinary way, without being before the court or having an opportunity of being heard. Can a suit against my overseer be sufficient to turn him from my plantation, and thus divest me of possession ? It may be said that he is a third possessor; that he has the actual, natural possession; the pedispossessio ; but is it such a possession as the law contemplated, when it authorized a mortgage to proceed against the third possessor? In every section the law speaks of the possessor paying the debt or satisfying the lien ; was that to be done by a superintendent, or by the one claiming an interest in the estate ? If the principal debtor be dead, leaving a single heir, who has accepted the succession, he may be proceeded against in the action hypothecarybut suppose the property be leased by the ancestor, may he not still be proceeded against in that form of action? if so, he (and not the tenant) is the possessor. See Code of Practice. But this subject seems to be put at rest by reference to the Civil Code, article 3396 : “ One may possess a thing not only by one’s self, but also by other persons.”
    “ Thus the proprietor of a house or other tenement, possesses by his tenant or by his farmer; the minor by his tutor or curator, and in general, every proprietor by the persons who hold the thing in his name.”
    6. This objection goes to the right of the petitioner to sue Allain, and it is believed, must be fatal to the whole proceeding. In addition, we rely that many irregularities exist «in the cause in the course of its prosecution, which are sufficient for its reversal. The affidavit annexed to the petition is not such as the law contemplates, of whom the demand was made, or at what time does not appear; and upon the trial of the cause, the proof was wholly insufficient to establish the necessary facts; it presented no fact whatever, but contáined deductions only. It is said that the appeal should be dismissed, because there is no statement of facts or bill of exceptions, upon which to found a reversal. This, it is presumed, is not necessary in all cases; if the record shows that the Inferior Court erred, it must be sufficient. Suppose a case of a suit against one, and a judgment against another, would the latter be without remedy Í But this is a statement of facts. The record shows the written and oral testimony which was used on the trial.
    7. If it was not necessary in the first instance to have sued Mrs. Yeatman, the owner of the estate, the one interested in the controversy,..the one interested in redemption, the one interested in showing the extinguishment of the mortgage, the one entitled to claim succession of the other mortgaged estate, a right which belonged to her, and could not possibly be exercised by Allain ; yet after having been made a party at the instance, or on the motion of Moore, for the appointment of a curator ad hoc, then to have dismissed the case as to her, and thereby depriving her of a right to be heard, was most clearly erroneous.
   Bullard, J.,

delivered the opinion of the court.

This is an hypothecary action, in which the plaintiff seeks to make the amount due-him by his former tutor, on a final settlement of his accounts, by the seizure and sale of a tract of land, formerly the property of his tutor, and now in the occupancy of the appellant. In answer to the petition, the appellant disclaimed any title to the property, averring that he leased the same from James Erwin, as the agent of Mrs. Yeatm'an, of Tennessee. He therefore prayed that a curator ad hoc might be appointed to defend the interest of the absentee, wbo he prays may be cited in warranty, to defend this suit, as owner of the property, and that he may be dismissed with costs. Accordingly, a curator ad hoc was appointed, who was cited, and the case was continued for ,six months. At the next succeeding term of the District Court, no answer having been filed on the part of the absentee, the court overruled or rescinded the order for calling in the warrantor, and no further opposition being made by Allain, the court pronounced a judgment, ordering the sale of.the mortgaged property.

!n a, action the defendant in posses-^¡¡nes title and indicat<;s the name of his lessor, _ may be themiSSedperson a part}'-.

All those arguments which have been addressed to this court, on the part of the appellant, relate to a want of evidence of legal demand on Nicholls, the mortgagor, and the insufficiency of the affidavit at the inception of these proceedings,- and to the regularity of the proceeding in the suit of Moore against his tutor, may be answered by saying, that the defendant did not put those matters in issue by bis answer. He chose to make no opposition further 'than to disclaim any title in the premises, and to demand that the absent owner should be cited in warranty. The only questions, therefore, which this court can properly entertain are, whether the plaintiff was bound to make the person, indicated by the defendant as the owner, a party, and to carry on the suit contradictorily- with him, and whether the court erred in disregarding the call on the absentee, and proceeding to judgment without him.

It has been strenuously urged, in argument, that-the law requires the hypothecary action to be brought against a possessor of the mortgaged premises, who has some interest in making opposition, sorne right to abandon, and who has the right of possession, and not against a mere tenant, whose 3 . r . ", -it - -i • possession is that of his lessor, and who is without interest to contest the claim, to plead discussion, or to pay the debt rather than abandon the property to be sold. In prosecuting , , L 1 *1 1 ° a petitory action, it is true, the defendant m possession, who disclaims title, and indicates the name of his lessor, may be dismissed, and the person claiming title or possession must be made a party. Code of Practice, article 43. But the hypothecary action is governed, by different rules, and is essentially a proceeding in rem. It is an action which is brought against the mortgaged property, in order to have it seized and sold. It follows the property in whatever hand it may be found. Articles 61, 62. If the hypothecated property be in the possession of a third person, the creditor has his action against that person, in order to compel him •. 1 either to give up the property, or to pay the amount ior which it is mortgaged. Article 68. No part of the Code of Practice requires that the person in the real occupancy of ^ 1 1 ** the property shall be discharged from the action on his indicating the name of his lessor. And in the present case the plaintiff was not bound, in our opinion, to proceed against 1 , , 1 " 1 . ° „ the supposed owner, who was absent. I he appointment of cuva¿or ]l0C and notice to him, was required by the defendant, and it was not the fault of the plaintiff, if the lessor did not see fit to step forward and defend his tenant, and make opposition to the order of seizure and sale. A'delay of six months was given for that purpose, and it was not for the plaintiff to ask a judgment by default, on the failure of the absent owner, by his curator ad hoc, to answer the demand made against him by the original defendant,

The hypothe-proceeding 1Sin rem, and when brought against the mortgaged lowsTt^s a real right into whatever hstids it may he found, Mssor'1 claiming it, must either give up the property or pay the mortgaged debt.

the occupancy of pert^cannotget charged from añ hypothecary acing the name of may^notify die latter to appear property.

The occupant or tenant of mortgaged pro-bhffor MstsTñ an hypothecary action against it. It is a proceed-the m property must pay.

The judgment of the District Court is, however, erroneous, jn rendering the appellant personally liable for costs, and in . this respect it must be reformed.

is> therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and J ° 5 reversed, and proceeding to give such judgment as ought, in our opinion, to have been rendered below, it is further ordered and decreed, that the tract of land described in the petition, be seized and sold, according to law, to satisfy the judgment recovered by the plaintiff against John Nicholls, for seven thousand nine hundred and eight dollars, together with the costs of this proceeding, and the sale of the mortgaged premises, and that the plaintiff pays the costs of this appeal.  