Lawrence v. Burthe

Morphy, J., delivered the opinion of the court. The plaintiff is appellant from a decree dissolving and setting aside an injunction previously obtained, to prevent the sale of twelve lots of ground, situated in suburb St. Mary. These lots had been sold to the plaintiff by Richard Hagan, who had purchased them himself from the defendants, at whose instance an order of seizure and sale had issued, under the mortgage reserved by them as vendors of said lots. [269] The grounds of injunction in the inferior court were, in substance, that the defendants had not pursued all the steps and formalities required for the exercise of the hypothecary action : and that the plaintiff was not made á party to the 7 r 1 T executory proceedings, although in possession of the mortgaged premises. It does not appear to us that the judge oof 11 o a below erre'd. R. Hagan, the mortgagor, bound himself not to alienate or mortgage the property to the. prejudice of his vendors and mortgagees. The well known effect of the ° ° clause de non alienando, is that any alienation or transfer, made in violation of it, is ipso jure void, as it relates to the creditor. The latter is not bound to pursue a third possessor by the hypothecary action, but may have the property mortgaged seized and sold, as if no change had taken place m its possessors, and being under no obligation to make the vendee of his mortgagor a party to the proceedings. 2 Martin, N. S., 32, Nathan vs. Lee; 1 Louisiana Reports, 29, Donaldson vs. Mourier; 13 Idem., 314, Nicolet's Executor vs. Moreau et al. Where an act of sale contains the clause de non alienando, any sale or transfer made in violation of it is, -ipso jure, void, as it relates to the first vendor or creditor. The first vendor, who sells with the clause de non alienando, may have the property on which his mortgage rests seized and sold, as if no change had taken place; and without notifying or making the vendee of his mortgagor a party. It is, therefore, ordered, adjudged and decreed, that the 7 J ° judgment of the Parish Court be affirmed, with costs.