Robb v. Potts

The judgment of the court was pronounced by Rost, J. The plaintiffs allege that, in the case of the Mayor and Council of Municipality No. 2, praying for the' appointment of commissioners; and for the opening of Lafayette street, the said municipality obtained, under the act of 1832, a judgment against Asher Philips, establishing the amount of his contribution, which judgment was duly recorded. That they have obtained a judgment against Municipality No. 2, t:o satisfy which the judgment against Philips has been sold under execution, a-nd adjudged to them. That Asher Philips having died, his widow and heirs have sold to the defendant the property assessed for the opening of Lafayette' street, and affected by the judgment and judicial- mortgage. That the defendant assumed in the act of sale to pay said judgment to the municipality, and has agreed to put himself in the state and-place of the widow and heirs of Asher Philips. That by their purchase of the' judgment they have become subrogated to all the' rights of the municipality, and' are entitled to avail themselves of the assumption- of the defendant. They pray that executory process may be'issued, and that the property mortgaged be seized and sold for cash. The order of seizure was granted, and- the' defendant appealed. The executory process- is a harsh remedy, and whoever resorts to it must make out a clear case, and bring himself within the letter of the law. If the claim on which the order of seizure was obtained in the present instance were' still the property of the Municipality No. 2, that corporation eould not, under' the act of 1832, resort to the executory process, without previously passing a resolution requiring the issuing of the process by the court in which the assessment was confirmed. The right to proceed vid ejecutiva, after passing, this resolution, is personal to the corporation, and cannot be transferred to its creditors. If the defendant, in assuming the payment of the debt, had given a-spe-^ cial mortgage on the property to secure it, the plaintiffs might, perhaps, proceed as they have done, on that mortgage. But no such mortgage is found in the sale under which defendant holds He has simply assumed the debt, and put him [553] self personally in the place of his vendors. The plaintiffs, therefore, can only enforce against him the mortgage which existed on the property at, the timo of his purchase, and this must be done in an ordinary suit. For the reasons assigned, the appellant is entitled to relief. It is therefore ordered, that the order of seizure and sale in this case be set aside and annulled, and that the plaintiffs pay the costs in both courts.