Jacob L. Florance v. The Orleans Navigation Company, 1 Rob. 224

Bullard, J. The plaintiff having obtained a judgment against the defendant, upon a promissory note, paraphed on its face by a notary public, took out a writ oí fieri facias, under which the sheriff proceeded to sell a lot of ground belonging to the defendants. On the second exposure, the land was sold at twelve months credit.

The defendants then took a rule against the sheriff, to which the purchaser was afterwards made a party, to show cause why the sale should not be set aside and annulled, in as much as the same was not made in conformity to law, and the land was not advertised to he sold on such terms as the act of mortgage required. This rule was made absolute, and the purchaser appealed.

The appellee relies in support of the judgment rendered in the first instance, upon articles 688 and 707 of the Code of Practice, the first of which provides, that ‘ when a seizing creditor has a privilege or special mortgage on the property seized, for a debt of which all the instalments are not yet due, he may demand that the property be sold for the whole debt, provided it he on such terms of credit as are granted to the debtor by the original contract for the payment of such instalments as are not due.’ In the case of Pepper v.

Dunlap, 16 La. 163, this court affirmed a judgment of the District Court, ordering the mortgaged property at the suit of the holder of one of the notes to he sold upon the terms of credit stipulated in the original contract. The

article above recited gives this right to the mortgagee in an hypothecary action, and it results from the principle that every part of the property is mortgaged for the whole of the principal debt, and that in the distribution of the proceeds of the pledge, the holders of the different instalments of the same mortgage are entitled to participate.

But it does not appear to us logical to conclude from hence, that the mortgagor, who is bound at all events to pay the whole of the debt, notwithstanding the insufficiency of the property mortgaged, can claim as a right the application of the' same principle, especially when, as in the present case, the proceeding is by an ordinary action, and the sheriff in executing the fieri facias is bound to sell sufficient property for cash to satisfy the writ. The case of Reed et al. v. Schmidt, 11 La. 72, which has been cited by the counsel for the appellee, does not appear to us to support his pretensions.

In that case the judgment had directed the manner and terms of the sale, and the sale which was made by the sheriff, was set aside because he had not proceeded according to the judgment. In the present case, we are of opinion that the court erred in rendering the rule absolute. It is therefore ordered that the judgment of the Commercial Court be reversed, and that the rule he discharged with costs in both courts. Josephs, for the plaintiff. G. Strawbridge, for the appellant.' Hennen, for the defendant.