Patin v. Prejean

Martin J., delivered the opinion of the court. The plaintiffs seek to obtain payment of a judgment, which they have obtained against their late tutor, by the sale of a tract of land, sold by him. The attempt is refuted by the defendants, who point out another tract, sold by the tutor, after he had sold that in the possession of the defendants. The plaintiffs contended, that as their tutor had sold the tract, in the possession of the defendants, before the year [305] 1817, the latter could not avail themselves of the act passed in that year, which requires creditors, with á general mortgage, to seize at first the land last sold by their debtors, The plea of discussion was sustained, and the plaintiffs appealed. PiSfce^iaareei>a«tedthe same general rules in relation to the jn-o^erfy by oreditors ,havins “ gage on the pro-debtors,0 asaras act of i8i7y re6 wiring them to the property last soeTdfngtowards that first s°ld> be satisfied. It is contended in this court, that the act of 1817, invoked by the defendants, established a rule of practice, and is consequently repealed by the Code of Practice, and that if it be not repealed, the defendants cannot avail themselves of it, because their ancestor purchased the land, before the passage of the act.' The Code of Practice, 715, provides that, in regard to sales under a fieri facias, the purchaser against whom a suit is commenced by a creditor, having a legal or judicial mortgage on the property of the debtor sued, may require the creditor to discuss the other property, in the possession of the debtor, before coming on that which he has in his possession; and even that which the debtor has alienated since the purchase. Had the legislator gone no farther, it might be urged oh the one side, that he intended only a special provision, confined to the cases of purchases at a sheriff’s sale, and on the other side, that it being difficult to discover, why a different rule should be established, in regard to such sales, it might be safely concluded, that the reason evidently extending to every sale, all should be regulated in the same manner. But the legislator proceeds, and gives us the grounds on , . , , , , ,. , , , which he acts, “because the creditor who has a general mortgage, can only act against the property, which his debtor has disposed of, in the order in which the alienations have taken place, beginning at the most recent, and ascending to the most ancient.” If the rule of practice, in this respect, established by the act of 1817, and invoked by the defendants, was repealed as a rule anterior to the Code of Practice, still the principle is recognised and incorporated in that Code, that the creditor, with a general mortgage, must proceed against the property alienated by the debtor, by beginning at that most recently [306] disposed of, and ascending towards that first alienated, until his claim be satisfied. A right or-title acquired under a contract, cannot be modified or suhsequentacTof hut thef'remedy or means given thol*e\?ghteÍ°are power of'tíie gisiature, who resu-iemhem as mayreqSreeS The means hy righteagStííe property of Ws tutor are to he enforced, are aiel^f1 the^egislature. iu reqvunng him to-discuss property fore* comíng ^on sold pr¡athough the law was en-mortgage attachty rf'wFtSoT yet it was in the gisTatare to pass It remains for us to examine, whether purchasers, before act 1817, may avail themselves of a legal provision, enacted since the perfection of the contract, under which the ¡an¿ was acqUjrefi. *■ , It cannot be doubted, that the title or rights, acquired under a contract, cannot be modified or affected by any subsequent act legislature; but the means of enforcing such rights, and protecting such titles, in other words, the remedy provided by law, to insure the enjoyments of such rights and *s a^ways in the power of the legislature, who may extend or restrict it, as circumstances may require, The lien on the land of the tutor, which results from the tmst committed to the tutor, cannot be destroyed or modified, without a correspondent destruction or modification of the minor’s rights; but the means by which the minor’s rights may be enforced, his remedy is always within the power of ’ .... . . . the legislature. In requiring him to proceed against the property, most recently alienated by the tutor, the minor’s rights or lien in the rest, is not destroyed or modified. Some “ . . , , . . , . delay, indeed, is thereby created; but every citizen who is obliged to resort to the court, to enforce his rights, must sufrmit to the forms and delays which the law has prescribed, or may from time to time prescribe. At the passage of the act of 1817, the minors would have keen bound to seize first the tract of land which they are now called on to discuss, because then it was in the possession of their tutor. That act, in requiring them to discuss the same tract after a sale, did not put them on duriore casu. It does not appear to us, that the District Court erred. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.