
    
      NATHAN & AL. vs. LEE.
    
    East’n District.
    
      Dec. 1823.
    
      Appeal from the court of the first district.
    
    The mortgagee's right un-der the past de non alienando is not repealed by the Civil Code.
   Mathews, J.

delivered the opinion of the court. In this case the plaintiffs obtained an order of seizure against the defendant, John M. Lee, on a special mortgage; and E. S. Lee intervened. claiming the same property, which was ordered to be seized, by virtue of a sale and conveyance from the mortgagor. He opposes the summary process of immediate seizure and sale, and to that effect obtained an injunction in the court below; which was after-wards dissolved and set aside; and from the order of dissolution the intervening party appealed.

It is admitted as a general principle of law, that mortgaged property in the hands of a third person, cannot be seized, without first pursuing the debtor and mortgagor by an hypothe-cary action, and fulfilling certain legal formalities required, in favor of such possessor. In the present case, the plaintiffs contend, that they are not bound by ordinary rules on the subject of mortgages, in consequence of a stipulation in the instrument under which they claim prompt execution, by which the mortgager agreed not to aleinate the morgaged property to their prejudice. In truth they rely on an exception to the general principle: This exception is most clearly established by the authorities cited in its support; and if they be law, the appellees must prevail. See Febro, p. 1 chap. 7, nos. 68-89. Same, p. 11, book 3, chap. 2, nos. 84-85. Curia Ph. mot Tercera poseedor, no. 11, and the laws refered to by these commentators. But on the part of appellant it is contended that this exception in favor of mortgaged creditors, who are aided by a pact non alienando, is virtually annulled and repealed by the provisions of the Civil Code, in relation to mortgages and their effects, and the rules laid down for pursuing the action of mortgage.

This Court is of a different opinion. The mode of proceeding, under orders of seizure and sale is still directed in a great measure by the Spanish laws which remain in force in this country: and it is believed that very little alteration is introduced in the action of mortgage and pursuit of third possessors. But a mortgaged creditor who acts on a mortgage, which contains in his favor an agreement of the debtor not to alienate, is not bound to pur sue a third possessor by the action of mortgage, but may have the hypothecated property seized, in via executira, as if no change had taken place in its possessors; because any alienation or transfer made in violation of the pact non alienando, is ipso jure void as it relates to the creditor. The counsel for the appellant, contends that as an agreement not to alienate to the prejudice of a mortgage stipulated by the parties to a mortgage, is nothing more than the general provision of the Code which inhibits the alienation of mortgaged property, it can produce no other effect on the rights than those created by the law itself.

By taking into view the whole context of our Code on the subject of Hypothecations; it does not appear that alienations or subsequent mortgages are absolutely prohibited on pain of nullity; but are only limited in their operations on prior claims, of superior dignity, either by privilege, or older mortgage. He who hypothe-cates his property does not thereby loose the dominion of it: he may therefore alienate it subject to the lien already created, which must be satisfied, before the third possesor can acquire a complete title. In snch cases the mode of redress is clearly pointed out and ought to be pursued. The remedy is different and more summary; when the mortgagor has expressly covenanted that he will not alienate; unless we should consider such a pact as entirely nugatory and unavailing; which would be contrary to a fundamental reason in the construction of contracts and statutes, i. e. that full effet should be given to all these provisions, whenever it can be done without falling into absurdity.

The judgment of the District Court is complained of as being erroneous, on account of not containing any reasons as required by the Constitution of the state. It is believed that the order of seizure granted in the first instance was valid without any reasons adduced in its support. So was the order on which the writ of Injunction issued. Why should the order or decree by which the injunction was dissolved require the aid of reasoning? Because it is perhaps, final on the rights of the intrevening party; at least so far as it authorizes a prompt seizure and sale of the property which he claims by sale from the debtor and mortgagor; for it amounts to a declaration of the nullity of that sale in relation to the mortgage creditors.

It is therefore ordered, adjudged, and decreed, that the judgment appealed from be avoided, and reversed, on the ground of the want of reasons. And proceeding here to give such judgement as in our opinion ought to have been given in the Court below. It is further ordered, adjudged and decreed that the injunction be dissolved and set aside, and that the plaintiff and appellees be permitted to proceed as if no such injunction had been granted-and that the appellees pay the the costs of this appeal.

Mazureau for the plaintiff, Grymes for the defendant.  