Moss v. Collier

Morphy, J., delivered the opinion of the court. The defendant and appellant resists the execuljon of an order of seizure and sale upon property which he holds as a third possessor. He assigns, as errors apparent on the face of the record: Where the vendor’s act of contains°tii<i clauseifenonaiu nooath’required, thirTperson,1^ proceeding against the mortgaged property &m'o™executory proceedings. . Where thepe-tition pursues the forms, and der^of”seizure and sale, the fact ing a citation to ,vm not change - Indinaría 'he 1st. That there is no affidavit, or sufficient evidence of the thirty days previous demand of the debtor, and the ten days previous notice to the third possessor, required by law ; that the administering an oath is a judicial function, and the clerk had no right to administer the oath in this case. 2d. That the proceeding in this case was by the via ordi-r ° J naria, and could not be legally changed to the via execuiiva. I. We need not inquire whether the first assignment be well founded or not, because the plaintiff’s deed of mortgage contains the clause de non alienando. Its well known effect is to relieve the mortgage creditor, when he resorts to his hypothecary action from the obligation or necessity of pur- . „ , . . , . , J r. suing ail the steps required in ordinary hypothecary suits, No oath was, therefore, required. • He might have proceeded without any notice to the defendant. II. As to the second, we cannot discover in the petition , ....... . , , 1 T any prayer that citation should issue to the defendant. It pursues strictly the form of the via executiva. If the clerk has issued citations not called for by the plaintiff, we do not think that his right can be thereby affected. Our attention has been called, in argument, to divers other alleged irregularities in the proceedings. Even if they were of any importance, wé could not notice them because not assigned. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.