Robichaud v. Worsham

The facts are stated in the opinion of the court, delivered by Martin, J. The plaintiff purchased at a sheriff’s sale under an order of seizure and sale, a tract of land of two arpents in front. He afterwards discovered that the person against whom the order had been obtained was in possession of one-half of the tract only, the other half being in possession of the defendant, under a title which was subject to the mortgage on which the order of seizure and sale had been obtained. Considering himself subrogated by the payment of the debt to the mortgagee’s rights, he instituted a suit against the defendant. He prayed that he might be cited, and decreed to elect between paying one-half of the debt and surrendering the land, and that on his refusal to do so, the land might be decreed to be sold. The defendant excepted to the petition, and required the plaintiff to elect, himself, one of the alternatives he proposed, and confine his claim thereto. The exception being sustained, the plaintiff amended his petition, and prayed that the defendant might be decreed to pay the one-half of the debt, and that in default the land might be sold. The defendant now excepted to the petition and prayed for the dismissal of it, on the ground that there was no allegation, on oath, that the plaintiff had within thirty days made an amicable demand on the mortgager without success. The exception was sustained, the petition dismissed, and tlie plaintiff appealed. In no case aUow^he hy^ tion^to^ be brought _ a-possessor until onIhe original debtor has cgssfully made It does not appear to us that the court erred. There is n« allegation of a privity of contract between the parties. The defendant can only be rendered liable in the hypothecary action. qqle Code of Practice, 69, provides that if thirty days after an amicable demand made on the debtor, the hypothecary debt has not been paid, the creditor may bring his action against the third possessor of the property sold, if he do not within ten days after receiving notice of such a demand, pay the debt. Another article requires the creditor’s oath that the debt is really due, and has been so demanded. 70. It is true the hypothecary<iction is not, in the present case, brought by the via executiva, that is to say, does not begin by an or<^er seizure an(l sale, but the third possessor is brought in the via ordnaria, i. e. by citation. The law has made no distinction authorizing a difference as *be mode of proceedings. It does in no case allow the hypothecary action against the third possessor, till after a demand on the original debtor has been unsuccessfully made. See also, Civil Code, 3364. It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs.