BABIN ET ALS. vs. WINCHESTER, 7 La. 460

Mathews, J., delivered the opinion of the court. This suit was instituted in the court below, by the plaintiffs, as heirs of Charles Babin, against the defendant, the seller and warrantor of a certain tract of land, described in the petition, to their ancestor.

The object of the suit, is to recover from the warrantor damages, on account of eviction, from the property which was sold by him, in consequence of an hypothecary action, prosecuted against the vendor, based on a special mortgage, which had been retained in a sale made at auction, by the judge of the parish of Ascension, &c., at the instance of the heirs of a certain Nicholas Doublin, of whose succession this land made a part.

The sale made by the defendant in the present action, contains a clause of general warranty, and it is not pretended that he is not bound to make good the loss and damages suffered by the plaintiffs, in consequence of the alleged eviction, unless it be shown that they suffered themselves to be evicted without calling the vendor in warranty, and that he could have successfully resisted the claim of the plaintiffs, in the hypothecary action, by just and legal means of defence, subject to his power and control. In truth, these are the grounds of defence laid in his answer.

Judgment was, however, rendered in the court below against him, from which he appealed. Admitting the fact to be true, that the defendant in the present suit was not regularly called to warrant the title by him conveyed to the ancestor of the plaintiffs, in the hypothecary action, by which they were evicted, we are now compelled to consider the force and effect of the means of defence assumed, as if they had been pleaded in that action, Civil Code, page 356, art. 64. These are as specified and detailed by the counsel for the appellant, as follows: 1st.

The act of sale from Doublin’s heirs, on which the order of seizure and sale was granted, contains no mortgage. 2d. The note sued on, was not identified with the act of sale, &c. 3d. There is no final judgment against the principal debtor, &c. 4th. That offered in evidence in the present case, is without signature, •without confirmation (being a judgment by default), and without reasons, therefore, utterly null and void. 5th. Prescription could have been successfully pleaded, &c. The validity of these assumed grounds of defence must be tested by the law and facts of the case.

Let us examine them in the order placed by the appellant: The prods hiwMchVmoi'tl gage is retained, made by the parish judge acting as auctioneer, and duly recorded in die parish judge’s office, is full evidence of die mortgage, •which is binding on third possessors of the mortgaged pi’operty. The identification of the note sued on with a mortgage taken to secure its payment, may be shown by circumstantial and parole evidence, without the paraph ne vanetur.

According to the rules of practice in force in 1816, which was before the adoption of the Code of Practice, a judgment by default became final,^ipsofactofcy the lapse of three days; and reasons are not necessary to the validity of such a judgment, 1.

The evidence of the mortgage reserved by the heirs of Doublm, in the sale made by them at auction, appears by the proces verbal of the auctioneer, who exercised this function officio, as being parish judge, and is exhibited in this suit, purporting to be a copy from the records in his office as judge; appearing in this manner, it is evidence equally good, of the mortgage retained as of the sale, and if it transferred the property to the vendee (which is not denied), the transfer was made subject to the terms created by the hypothecation, and all being» recorded in the office of the judge, the mortgage is binding on third possessors. 2.

As to the identification of the note sued on, with the mortgage, admitting this to be absolutely necessary in all actions on mortgages, it is not required that this circumstance, which is merely accidental to the contract, should be made appear by the usual paraph, ne varietur.

In the present case, a comparison of the date of the note with the sale, and the circumstance appearing that it was executed precisely in pursuance of the terms and conditions of the sale, both as to persons and time of payment, create a violent presumption in favor of its identity with the mortgage, which must stand until the contrary be proven, which has not been done in the present instance.

In relation to the third and fourth grounds of defence (for we will consider them together) it is true, that under the old Code, which governed when the proceedings took place, in the hypothecary action, to which the present contest refers, a creditor was bound, before seizing mortgaged property in the hands of a third possessor, to obtain a judgment against his debtor.

And if it be true, as alleged, that no judgment was obtained in the instance now before the court, against the original debtor, the action of mortgage, properly so called, against the third possessor, might have been successfully opposed on this ground. But a judgment was obtained, and the question to be solved relates to its validity. It is a judgment by default, and under the rules of practice, which were in force at the timefit was entered, it became final, ipso facto, by the lapse of three days.

We have, heretofore, decided, that reasons are not necessary to the validity of such • a judgment. 4 Martin, 665. 7 Ibid. 440. A judgment by-default, which becomes final by operation of law, does not require the signature of the judge to render it perfect and final. The question now occurs, whether a judgment, which be comes final by lapse of time, ought to be considered as available in favor of a mortgage creditor, in a pursuit for payment of his debt, against a third possessor, when such judgment has not been signed by the judge, in whose court it may have been entered by default.

It has been decided in several cases, that judgments rendered and pronounced by the tribunals of the state, are not complete, in all respects, until they are actually signed by the judges, who may have pronounced them. Until they are sanctioned by the signature of the judge, a new trial may be rightfully Claimed in the court of the first instance, and an appeal taken to the Supreme Court, within the delays limited, counting from the day of actual signature. 3 Martin, 389, and 5 Ibid. N. S. 105. Ibid. 320.

The judgments in these cases, it is believed, were pronounced by the judges, who presided at the hearings of the causes and after contestationes litium. We are not aware that subsequent legislation has introduced any radical change in the principles established by the act of the legislative council, of the late territorial government of this country, regulating the practice of the superior court of the territory of Orleans, touching judgments taken by default, and requiring the signature of the judge who renders a judgment; at least no change which can operate on the present question. By the fourth

section of that act, it is provided, that “ if a defendant shall not appear on the day given in the citation, and file his answer, &c., then the petitioner or his counsel, may order judgment to be entered up against such defendant, and if they shall hold session three days after taking such judgment, and no motion is made to set the same aside, upon showing good cause, and to file an answer, or if such motion be made and overruled, then the said judgment shall be final, &c.” In all this proceeding, no direct agency of the court is required, and the judgment becomes final by the operation of the law, and it would follow as a corollary, that such a judgment does not require the signature of the judge, in order to render it perfect and final.

But the 13th

section of the same ac{ requires, “ that all judgments rendered by said court, shall be pronounced in open court, be entered on theminuf.es of the court by the clerk, and shall, three days thereafter, if not set aside by the court, on motion for a new trial, be signed by the presiding judge of the court.” This section, by its terms, most clearly relates to judgments, rendered and pronounced by the court after trial, and can only, on a forced construction, be made applicable to judgments by default, which become complete and final, by mere operation of law. According to this

interpretation, the signature of the judge, to a judgment of the latter kind, is no more requisite to its validity, than that reasons should be adduced in support of it, and it has already been decided by this court, that reasons need not be assigned in a j udgment which becomes final by lapse of time and operation of law, on one taken by default, t. warranty, prerans Ufrom °fte date of eviction.

Ju til© action. is commenced prevent pre- The action of iraiT«i°by Sprecomm'enced'rhei1 within ten years when the debt payable.due and The third possessor, who is evicted, is entiof his vendor°and value ofhis improvements put premises at the tion.°d °f eV1°" Thus we are brought, to the plea of prescription. It is t é « i ¶ clear, that it is not available as a- defence to the present action, as introduced in the points of the appellee. The suit ;n warranty was commenced in 1830, and the eviction com- ■ j > plained of did not take place until 1826.

Neither could it have been effectually opposed to the mortgage creditors, in their action of mortgage; for their right to sue did not accrue until 1815, and they commenced the hypothecary action, properly so called, in 1824; so that only nine years had elapsed between the time when they had a right to commence it and the time when they did commence that proceeding. The last objection/to the justice and legality of the judgment rendered in the court below, has reference to the da- . mages allowed to the plaintiffs. It is said that they are not authorised, either by the facts or law of the case.

As to the matter of fact, it suffices to observe, that there is evidence on record, proving that the third possessor, who was evicted, had made improvements on the premises to the value of one thousand dollars at least, and this amount only is awarded. As to the law on this subject, it appears by the art. 2485 of the La. Code, that the seller or warrantor is bound to reinaburse, or to cause to be reimbursed to tbe purchaser, by the person who evicts him, all useful improvements made by him on the premises. This

article is in accordance with the provisions of the old Civil Code, and conforms to the doctrine taught on this subject, by Pothier, in his treatise on sales. Contrat de Vente, nos. 132 and sequentes. In case of eviction, consequent on a mortgage, it is possible, that these rules may not strictly apply. In the present case, however, nothing appears to show any injustice in their application. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.