Watson vs. Bondurant.

and because this proceeding is not such a suit as may be removed from a State court into the Circuit Court.

ON THE MERITS.

The Pleasant View plantation, situated in Tensas parish, consisting of 1400 acres of land and a large number of slaves, were inherited by John Bondurant, Horace Bondurant, Albert Bondurant, and their nephew, Walter E. Bondurant, a minor. To effect a partition, the entire property was sold at public sale, by the sheriff, for three fourths cash, the other fourth, the minor's share, payable on his attaining his majority, in 1862, with interest at seven per cent, payable annually. The property was purchased by the major heirs, and the minor's share was $37,118 50. To secure this a mortgage was reserved in the sheriff's deed, of date fourth December, 1852, in which the clause was inserted by which the purchasers obligated themselves "not to alienate, deteriorate, or incumber said property to the prejudice of said mortgage ;" and this deed was recorded on the sixth December, 1852; and was re-inscribed on the eighth September, 1865.

By subsequent partition a tract of 165 acres, part of the 1400 acres constituting the Pleasant View plantation, fell to John Bondurant; and on the thirtieth November, 1854, by public notarial act, duly recorded, he sold this tract to A. C. Watson for $5775, or thirty-five dollars an acre. Frank Watson derives title through A. C. Watson; and it was proven that John Bondurant, from the time he acquired up to the date of his sale to Watson had public, peaceable, notorious possession; and after that time the Watsons had possession in like manner.

The interest was paid up to December 4, 1862; and in March, 1854, a payment of $5018 16 was made, which was credited on the capital sum. In November, 1867, Walter E. Bondurant recovered judgment for the debt with interest; and at sheriff's sale, under execution, he purchased the Pleasant View plantation for $4478, less than half the interest due. Watson was in possession of the small tract purchased of John Bondurant, and Walter E. Bondurant, then a citizen of Mississippi, brought suit against him in the United States Circuit Court in New Orleans to oust him. The case went to the Supreme Court of the United States; and it was decided that Bondurant had not acquired this tract at the sheriff's sale, because the sheriff had not seized it as the law required. See the case, 21 Wallace. This is the property seized under the alias writ, and the subject matter of this litigation.

Plaintiff, Watson, maintains that the mortgage in favor of Walter E. Bondurant had lost its effect as to him by the failure to have it re-inscribed before the expiration of the ten years, as required by article 3333 C. C., article 3369 of the Revised Civil Code.

Watson vs. Bondurant.

Defendant contends that re-inscription was not necessary in this case, because Watson is charged with notice by the pact de non alienando, and that the mortgage in favor of a minor need not be re-inscribed.

We had occasion lately to examine the question of inscription and reinscription, so far as third persons are concerned, in the case of John I. Adams & Co. vs. Thomas Daunis, No. 6532, decided on the second inst., and we do not propose now to repeat what we said in that case. We remark, however, that subsequent investigation has only served to confirm the views we then expressed :

First-That under the positive law of Louisiana, as contained in the Code and the Statutes, nothing supplies the place of registry, or dispenses with it, so far as those are concerned who are not parties to the mortgage;

Second-That when ten years have elapsed from the date of the inscription, without re-inscription before that time, the mortgage is without effect as to all persons whomsoever who are not parties to the mortgage.

We understand the effect of the pact de non alienando to be this: Where a mortgage contains this stipulation, the sale by the mortgagor does not prevent the mortgagee from proceeding by executory process, and he need give no notice to the purchaser. The proceeding by executory process is a proceeding in rem; and if the title under which the mortgagor claims is such that he may thus proceed in rem, he need not notice any subsequent alienation of the mortgaged property by his mortgagor; just as in proceeding in admiralty against a ship, no subsequent change of master or of owner need be noticed by the libelant, who proceeds against the thing itself which is liable to him.

A little reflection will show that the pact de non alienando contains nothing that the law does not imply in every mortgage. The mortgagor by the act of mortgage binds himself personally, and binds his property for the debt; and he necessarily obligates himself morally, and in law, not to deprive the mortgagee of the benefit of the security by alienating or deteriorating or incumbering the property to his prejudice. If the mortgagee records his mortgage, it is not in the power of the mortgagor to alienate or to incumber the property by any subsequent title which will impair or affect the mortgage.

If the mortgagee, instead of proceeding via executiva in rem against the property, elects to sue his debtor in personam and to attempt to enforce his judgment by execution via ordinaria, the pact de non alienando will not enable him to seize the mortgaged property in the hands of a third possessor claiming the ownership. He must exhaust his remedy against property subject to seizure under the writ of fieri facias; and, failing to obtain satisfaction by this means, he can reach the mort

Watson vs. Bondurant.

gaged property only by an action, the regular hypothecary action of our law, against the third possessor; and his mortgage, if properly inscribed, is as available in this form of proceeding without the pact de non alienando as it would be with that stipulation. Code of Practice, articles 61-68; Page vs. Générés, 6 An. 550; Desobry vs. Carmena, 9 An. 180.

After the lapse of ten years, without re-inscription before that time, subsequent mortgages are not affected by the first inscription; and neither notice, nor even the pendency of a suit on the mortgage, dispenses with re-inscription. See Sheppard vs. Cotton Press, 2 An. 110; Succession of Lowery, 22 An. 205; Hyatt vs. Gallier, 6 An. 321; Young vs. City Bank, 9 An. 193; Succession of F. Coner, 12 An. 216; Con. Ass. vs. Wilson, 10 An.; Kohn vs. McHatton, 20 An. 223; Britton & Kountz vs. Norment, 20 An. 508; Britton & Kountz vs. Janney, 21 An. 204; Blair & Co. vs. Taylor, 25 An. 148.

The mere reading of article 3333 C. C., article 3369 of the Revised Civil Code, shows that the minors' mortgage which need not be re-inscribed is that to which the property of their tutors is subject by law, as security for the administration of their estates; and there is nothing in the law to take the mortgage in this case out of the rule which imperatively requires re-inscription.

The position of the parties was this: dating from the fourth December, 1852, a mortgage, properly inscribed, secured to the minor, Walter E. Bondurant, his one fourth of the estate inherited by him, or rather the price of this one fourth. This mortgage, in virtue of the inscription, bound the property for and during ten years, without regard to any subsequent changes in title or possession. On the sixth of December, 1862, this inscription perempted and lost its effect, even against the contracting parties; and it would have been the duty of the recorder to have canceled and erased it on the application in writing of any party in interest. Act of 1843, Revised Statutes of 1870, sections 450, 3141, amending C. C., art. 3333 Rev. C. C., art. 3369. From the thirtieth November, 1854, Watson was the owner. and was in possession of the property in question. The mortgage which had affected the property no longer incumbered it in his hands, because ten years had elapsed without re-inscription. The mere failure to cancel the perempted inscription did not revive it. The article of the Code says the inscription must be renewed in the same manner in which it was made. It was dead so far as the first inscription was concerned. The law, however, permits re-inscription; and this mortgage was re-inscribed on the eighth September, 1865, nearly three years after the first inscription had lost its effect even against the contracting parties. The re-inscription gave it effect as a mortgage of the date of that inscription; but at that time the property no longer

Watson vs. Bondurant.

belonged to the debtors, the mortgagors; and it had no effect whatever against that property.

The plaintiff in injunction, Watson, demanded two thousand dollars in damages for the unlawful seizure of his property. two hundred and fifty dollars, without calling a jury. This was error. The judge allowed The Code of Practice, article 313, requires the judge where a judgment by default is to be confirmed and damages are to be assessed to have a jury summoned and to give judgment in conformity with their verdict.

It is therefore ordered, adjudged, and decreed that the judgment of the court below be amended so as to disallow the damages awarded to the plaintiff; and to that extent that the said judgment be avoided and reversed; and in all other respects that the said judgment be and it is hereby affirmed; the plaintiff and appellee to pay the costs of this appeal; defendant and appellant paying costs of the court below.

!

CONCURRING OPINION.

DEBLANC, J. Daniel M. Bondurant left, as his heirs-at-law, three sons, Albert, John, and Horace, and a grandson, Walter E. Bondurant.

On the fourth of December, 1852, the whole of the property belonging to the succession was sold at auction, and bought by his three sons for $148,474. Two days after, on the sixth of said month, the deed from the sheriff to them was recorded, and it was not re-inscribed until the eighth of September, 1865. Since that date, more than eleven years have elapsed, and the re-inscription has not been renewed.

Of the price of said property, one fourth was due by the purchasers to Walter E. Bondurant, and was to be paid to him at his majority, on the fifth of March, 1862, with interest. That claim was secured by mortgage, containing the stipulation which has been and still is confounded for "the pact de non alienando.”

In 1854, on the thirtieth of November, Augustus C. Watson purchased from John Bondurant the land acquired by the latter and his brothers from their father's estate, and subject to the mortgage of the minor Walter. On the fifth of August, 1872, said Watson sold to his sons, Augustus and Frank, the land thus acquired by him from John Bondurant, and, on the sixth of December, 1875, by purchase of his brother's share, Frank Watson became the sole owner of the whole.

Walter E. Bondurant brought suit against his uncles, to enforce his mortgage, and, on the fourteenth of November, 1867, obtained a judgment against them, with a recognition of said mortgage. Under an alias writ of fi. fa., issued from said judgment, the land bought by Frank Watson from his father and brother, was seized on the fifteenth of June,

Watson vs. Bondurant.

1875. On the twenty-eighth of said month, he enjoined the execution, on

the grounds:

First-That the mortgage in favor of Walter E. Bondurant has perempted for want of re-inscription;

Second-That he is a third possessor; that he was not made party to the suit in which the said Watson obtained the judgment he is seeking to execute against him, and that, as third possessor, he was entitled to and was not given the notice prescribed by law.

In answer to plaintiff's injunction defendant alleges ;

First-That, in the contemplation of the law and by the effect of the pact de non alienando, the whole of the land mortgaged remained in the hands of the original debtors;

Second-That, except in certain specified cases, peremption does not run against minors.

In the act of sale from the sheriff to Albert, John, and Horace Bondurant, there is the clause which, for over forty years, has been construed and enforced as the pact de non alienando. Does that clause prohibit the sale of the mortgaged property? It does not. John Bondurant had the right to sell; he sold. Frank Watson had the right to buy; he bought. The several acts of sale passed from 1854 to 1875 were duly recorded and became as many notices to the world. 8 R. R. 165, Ducros vs. Foster.

In disregard of those recorded titles, under an execution issued on a judgment against John, Albert, and Horace Bondurant, a tract of land which had ceased to be their property, which was no longer in their possession, was seized to satisfy said execution, and that land was so seized with the full knowledge that it was then the property and in possession of Frank Watson. Is not that seizure a manifest violation of the spirit and letter of our law?

At the date of the seizure, Frank Watson was, and he is now a third possessor: as such, he should have been called upon to pay the mortgage claim, if any such existed, or surrender the hypothecated property. This done, and he failing to discharge the debt, the property should have been seized under proceedings instituted against him, the owner and possessor, and he should have been notified, as the law requires, of the seizure and intended sale of his property. To this rule, in law, there is no exception. There are not, in Louisiana, two classes of third possessors of mortgaged property, one against whom the creditor must proceed regularly, and another whose title may be divested without even the necessity of a single notice.

It is contended that, when the creditor proceeds under an act which contains the pact de non alienando, he can seize, not only from the owner and possessor, but from the first vendee and original mort