
    
      WALKER vs. DUNBAR.
    
    Appeal from the eighth judicial district.
    Plaintiff⅛ hypothecary action need not allege ownership in defendant: allegation of P°!Lsession snmces,
   Mathews J.

. . delivered the opinion of the . court. This is an hypothecary action, in which J1 J . the defendant is sued as a third possessor of a * house and lot, which is alleged to be mortgaged to secure the payment of the money claimed by the suit. The defendant pleaded several exceptions to the manner of instituting the action: 1st, That the petition contained no proper allegation that the person who lived in the house was a third possessor. 2d, That an hypothecary action cannot be maintained against a third possessor without an allegation of ownership in him, &c.

These exceptions were sustained by the district court and judgment of nonsuit pronounced, from which the plaintiff appealed.

According to our code of prac. an hypothe-cary action is a real action—art. 61; and by the 41st article this species of action lies. against a possessor of immoveable property, where the plaintiff claims the ownership or the possession, or the exercise of some immoveable right on property thus possessed. The right of mortgage is so strongly attached to the thing mortgaged, that it may as emphatically be considered an immoveable right, as any other which can be imagined to exist on real property.— are^ therefore, of opinion, that the second exception was erroneously sustained, nor do we believe the first should have been supported. The defendant, in one part of the petition, is described as living in the house as a merchant: in another place, there is an allegation that the note on which the suit is founded was given for the price of the house possessed by the defendant. Perhaps either of these clauses would be, in itself, sufficiently descriptive of the appellee as a third possessor, but taken together, they leave no doubt of the character in which he is sued.

Slidell and Saunders for the plaintiff

It is therefore ordered, adjudged, and decreed, that die judgment of the district court be avoided, reversed and annulled; and that the cause be remanded to said court to be tried •n its merits, &,c.; the appellee to pay costs,  