
    No. 989.
    Joseph Dejean vs. Clement Hebert et als.
    The vendor has, for the security of the unpaid portion of the purchase price, a privilege on the thing sold. That privilege exists by mere operation of law, and need not be reserved by any stipulation in the act of sale.
    An act of mortgage in which the debtor acknowledges the debt secured by the mortgage, imports a confession of judgment, and under such an act executory proceedings may be instituted.
    The plaintiff and his surety in an injunction suit, restraining the execution of an order of seizure and sale, can not be held liable in damages, except by an action on the bond.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Hudspeth, J.
    
      John N. Ogden for plaintiff and appellant.
    
      F. Ferrodin for defendant and appeliee.
   The opinion of the court was delivered by

DeBlanc, J.

On the 12th of May, 1872, Clement Hebert sold to Joseph Dejean a plantation, situated in the parish of St. Landry, for the price of $1700, payable as hereafter mentioned, to wit: $500 on the day of the sale, $500 on the 1st of January 1874, and the balance on the 1st of January 1875. For the credit portion of the price, Dejean furnished two notes, which were not paid at their maturity.

On ■che 24th of November 1876, Clement Hebert applied for and obtained an order of seizure and sale, commanding the sheriff to seize and sell the plantation conveyed by Hebert to Dejean, to satisfy the balance due by the latter to the former. At the foot of the petition praying for the seizure and sale there is the order granting the creditor’s application, and — under it — the following declaration signed by Dejean: “I accept service of the preliminary notices required by law, and waive all legal delays, provided the property be not sold before the 1st of January 1877.”

In accordance with the order of the court, and at the date fixed by the agreement, the sheriff was proceeding to execute the writ of seizure and sale, when he and the creditor were enjoined and prohibited from selling the property seized, on the grounds :

1. That it does not appear that Dejean gave a privilege or mortgage to secure the payment of the notes sued upon.

2. That, as no such declaration is to be found in the act of sale, that act does not import a confession of judgment.

The district court dissolved the debtor’s injunction, rejected the creditor’s claim for damages, and reserved the latter’s right of action on the injunction bond. The debtor has appealed.

The decision of the lower court conforms to the facts and the law.

The creditor may renounce to his mortgage and privilege, as vendor; but the vendee who takes the property, without paying the price, cannot, by any special acknowledg ment of a privilege conferred by law, add to his vendor’s right: that right, that high privilege, needs no acknowledgment of the debtor, no declaration of the notary, to exist, to follow, to remain attached to the property, until satisfaction of the price and every fraction of the price.

Rev. 0. 0. 3249.

“ Ce que la loi protege essentiellement, ce qu’elle met sous la sauvegarde du privilege, c’est la transmission de la proprióté; ce qu’elle veut assurer, c’est l’éxecution dans toutes ses parties, dans toutes ses conséquences, du contrat par lequel le propriétaire abandonne sa chose et la. livre sous la condition de rocevoir en retour les sommes ou les valeurs qui sont le prix en vue duquel il s’est dessaisi. Done la faveur du privilege s’attachera aux conventions de l’espéoe des que la transaction aura le caractere et les effets de la vente, bien que l’acte qui la constate n’en porte pas la qualification.”

Paul Pont on the 2103d art. of the N. C.

That, though it was not specially reserved, Hebert has a privilege, is not only not denied, but admitted. It is urged, however, that — in form — the act on which he relies does not import a confession of judgment. That distinction is not in the law; a privilege asserted by the Oode is not inferior to a privilege asserted by the notary’s pen.

The act from Hebert to Dejean was passed before a notary, and in the presence of two witnesses. In that act Dejean acknowledged the identical debt for which he is sued. That.act, and the notes identified with it by the notary’s paragraph, evidence a contract secured by a privilege. That act imports a confession of judgment, and under its-terms and the law, the creditor was entitled to executory process.

C. P. 732, 733, 734.

The order of seizure and sale is so far a judgment that it can be-appealed from ; but it is not a judgment in the true legal sense of the term; it does not possess all its features. It is granted without citation, decides no issue, adjudicates no right in addition to those mentioned in the act, and the party enjoining such an order can — with his surety — be held liable but by an action on the bond.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and it is hereby affirmed with costs.

Dissenting Opinion.

Manning, C. J.

The executory process of our law is an extraordinary and anomalous remedy. It disregards and contemns the ordinary-legal forms of procedure by which a forced alienation of property may be made, and accomplishes its purpose with a swiftness more in accordance with military usage than with civil routine. The celerity of its motion is equalled only by the indifference with which it overrides the legal requirements of every other species of procedure. Without citation or notice, without trial or judgment, the creditor holding a peculiar kind of authentic Act presents that Act with the evidences of his claim to the judge out of court, and then and there obtains a peremptory and unqualified mandate to seize the debtor’s property described in the Act, and not until then is he required to inform any one but the judge of his intentions or purposes. A brief delay is given to the debtor to-pay, and failing that, the advertisement incontinently follows.

The employment of such process should not be permitted beyond' the limit prescribed by law for its exercise. It should not be applied to any cases except those plainly and unmistakably within the purview óf the legislation which created it. It can be resorted to when the creditor’s right arises from an act importing a confession of judgment, and which contains a privilege or mortgage in his favor, Code Practice» art. 732 — 3, And an act is said to import a confession of judgment in matters of privilege and mortgage, when it is passed before a notary public in the presence of two witnesses, and the debtor has acknowledged or declared the debt for which he gives the privilege or mortgage-

The Act upon which-the process issued in this case is notarial, and that is the only respect in which it complies with the requirements of the Code. There is no mortgage recited, no privilege retained, no declaration or acknowledgment of a debt made, but simply, barely, andi ■solely the words necessary to inform the reader that a sale has been then and there made.

I am not oblivious of the legal principle that the privilege of the vendor exists by operation of law, and independent of the convention of the parties, or rather that it springs out of that convention by a sort of •spontaneous birth, the result of the contact of these two consenting minds. And therefore if the vendor, suing upon the notes of his vendee, should demand the recognition of his privilege, it would be accorded him, although no stipulation to that effect were found in the Act of sale. It would be vain for the vendee, pursued via ordinaria, to deny the existence of the privilege because it had not been formally recited in the Act of sale, since the law created the privilege, and attached it to the vendor as a right for him to enforce in security of the notes given for the purchase price.

But does the'law create the privilege, and also attach it so firmly to the vendor that he cannot shake it off — that he cannot expressly renounce or tacitly waive it ? And when in order to entitle him to a process, which leaps by one bound over all the stages of a suit, he must have an Act which contains a privilege or mortgage, and there must be within it a declaration or acknowledgment of the debt, can he obtain such process when the Act itself does not contain either privilege or mortgage, or declaration or acknowledgment of the debt ?

It is the law that holds in its bosom — in gremio legis — -the privilege which secures the price of sale. The Act does not contain it. It is wholly outside of the Act. The single line that the vendor hereby retains the privilege accorded him by law would have made the act contain it. The law of registry has assumed new aspects from modern legislation. How is one to know that a hidden privilege lurks beneath verbiage which does not advise one of its existence? The special feature of our recent legislation relative to registry is the care taken to provide for recording all liens so that an inspection of the recorder’s books may shew all incumbrances. Must you not only read what privileges are created or retained, but also by another mental process evolve a privilege out of recitals which do not express it ? In this particular instance the waiver of the privilege, inferrible from the absence of any recital, is made probable by the fact that the Act was recorded only in the conveyance book.

The Act is markedly free from either declaration or acknowledgment of the debt, save the statement that the purchase is made and the notes given. After opening in the usual form, it recites the appearance of the vendor, who declared that for the consideration hereinafter men. tioned, he does by these presents grant, bargain, sell, convey, transfer assign and setover, with full guarantee against all troubles, debts, mortgages, claims, evictions, donations, alienations, or other encumbrances whatever, and with subrogation to all his rights and actions of warranty against all previous owners and with full guarantee of title unto Joseph Dejean, a resident of the parish of St. Landry, here present and accepting for himself his heirs and assigns, the following property:

Here follows the description of the property, and then proceeds;— This sale is made and accepted for the price and sum of seventeen hundred dollars, payable as follows: The sum of five hundred dollars paid cash on this day; receipt of which is hereby acknowledged. The sum of five hundred dollars, payable on the 1st day of January, 1874, and the balance seven hundred dollars payable on the 1st day of January, 1875, for which sum said purchaser has furnished his promissory notes, in conformity to the above stipulations, bearing eight per cent per annum interest, after respective maturity until final payment of capital and interests, said notes being marked by the notary “ Ne Yarietur ” for identification with this act. Purchaser freeing the undersigned notary from the production of the certificate of mortgage required by article 3328 of the Louisiana Civil Code. Thus done and passed in my office in the town of Opelousas in presence of, &c. &c.

The recital here is that the vendee has made the debt, not acknowledged it — has furnished two notes, not specifically declared its existence. But what need for an acknowledgment of a debt from one who has just declared that he has made it? None, so far as the validity and binding force of the debt is concerned. But when the law requires it in order to entitle one to a peculiar and exceptional remedy for its enforcement, the answer properly is, ita lex seripta est.

My opinion is that executory process cannot legally issue upon a notarial act containing no more than is recited in that above quoted, and that the injunction of plaintiff should be sustained and perpetuated, reserving to defendant the right to pursue his debtor via ordinaria for a j udgment upon his notes and a recognition of the privilege which the. law has given him for the security of their payment.

Make, J. I concur in the foregoing opinion of the Chief Justice..  