ALEXANDER vs. EVANS ET AL., 10 La. 132

Bullard, J., delivered the opinion of the court. The only question which this case presents for our consideration, is, whether a twelve months’ bond, taken in pursuance of the act of 1817, to amend the several acts enacted to organize the courts of this state, and for other-purposes, operates as a judicial mortgage upon the property of the obligors, when registered in the office of the recorder of mortgages. The 15th

section of that act declares, that when the sheriff shall have sold the property on a credit, he shall return with the execution the bond by him taken, and lodge the same with the clerk, which shall have the force of a judgment. It then provides for the issuing an execution on the bond, against both principal and surety, if the money be not paid when due, in the same manner as upon final judgment of the court. The previous

section provides, that if the bond be given for the price of lands or slaves sold on execution, a mortgage shall be retained on the property sold. It is argued, that if the bond is to have the force of a judgment, it must, when recorded, produce a judicial mortgage, as that is the necessary force of every judgment.

The Civil Code which was in force at the time of this transaction, defines a judicial mortgage to be that which proceeds from every judgment, and declares that it takes effect from the day when the judgment has been rendered, either on a hearing of the parties, or by default, final or subject to appeal. But, it excepts awards of arbitrators before their execution has been ordered. Civil Code, pages 452, 454, art. 8, 9. But, we are of opinion, that the twelve months’ bond is essentially a contract to which the law attributes the force of a judgment only as relates to its execution by

summary process. It has, perhaps, no other attribute of a judgment. No appeal will lie upon it. No judicial sanction is required for its validity if it is taken by a ministerial officer. It may be attacked like other contracts for error, and would be void if the proceedings which led to it in executing the previous judgment were irregular and illegal. It belongs, rather, in the opinion of this court, to a class of contracts, which, by the Spanish law, carried with them the execucion aparejada, like a conventional mortgage passed before a public officer, having the force of a judgment confessed.

We therefore concur with the district judge in opinion, that the recording of the twelve months’ bond did not operate a judicial mortgage. So, a twelve ken in pursuance “j- tlie ?ot and is, does not dieiai^ortgage on the property when registered recorder of mortgages. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.