Succession of Vancourt

Merrick, C. J. On the eighteenth day of November, A. D. 1854, Daniel D. Vancourt, Jr., the son of the deceased, Daniel D. Vancourt, mortgaged a house and lot in the Fourth District of New Orleans, to E. &. Gottschalk. The mortgage contained the pact de non alienando. Gottschalk, by notarial act, transfered the mortgage to Ghaffrey Vasserot, and subrogated him to his rights. Daniel D. Vancourt, Jr., sold the mortgaged property to his father. Daniel D. Vancourt, Sr., died, and the property mortgaged by his son was inventoried as belonging to his, the father’s estate. On the 16th day of November, 1855, an order of sale, issued from the Second District Court, for the sale of the property of the succession, and on the 22d day of December, of the same year, the house and lot in question were sold as the property of D. D. Vancourt, deceased, and bought by A. A. Mellaerto for $1,300. Vasserot, in the meantime, viz: on the 24th day of November, 1855, obtained an order of seizure and sale against D. D. Vancourt, Jr., the mortgagor, for the sale of the mortgaged property. On the 12th day of January, 1856, the property was sold at Sheriff’s sale, Ghaffrey Vasserot became the purchaser for the sum of $1,350. The administratrix of D. D. Vancourt took a rule upon Vasserot and other mortgage creditors, to show cause why the mortgages should not be erased and cancelled. The rule was opposed by Vasserot, among other reasons on the ground that the Court had no right in this proceeding to deprive him of the benefit of his mortgage and purchase. The District Judge was of the opinion that although he could not do away with any of the mortgagee’s rights, he could order the sale of property within his jurisdiction and thereupon he made the rule absolute, but reserved to the mortgagees the right, if any they have, to claim the sums due them out of the proceeds of the sale, in the hands of the administratrix. Vasserot appealed. The District Court has fallen into error in not distinguishing, between the creditors of the intestate and those of a previous holder of the mortgaged property. Vasserot was not a, creditor of D. D. Vancourt, deceased,; hence he could not be compelled to appeal- in the concourse and contest his rights to the proceeds with the mortgage creditors of the intestate. Vasserot’s mortgage was superior to the title of D. D. Vancourt, deceased, his debtor was a former holder of the property, and having his mortgage protected with the pact de non alienando he had the right to pursue the property by his executory process, not only in the hands of the administratrix, but against any purchaser of the property at the probate sale of D. D. Vancourt, deceased. Offut et al v. Hendsley et al, 9 L. R. 14. This is sufficient to dispose of the rule taken in this case, and it is unnecessary to pass upon any other matter discussed by the litigants. [385] It is, therefore, ordered, adjudged and decreed by the court that the judgment on the rule taken by widow 0. Vaneourl, administratrix, on Ghaffrey Vasserot and others, be avoided and reversed as tQ the said Ghaffrey Vasserot, appellant, and that the said administratrix and appellee take nothing by her said rule as against the said Vasserot, and that she pay the costs of both courts.