Palma v. Abat

Wxly, J. Plaintiff, tlie purchaser of three lots subject to a special mortgage with pact de non alienando, sues to annul a subsequent sale under the foreclosure of said mortgage. The sale was made under executory process, and the three lots and improvements were sold in block, although appraised separately, and although described in the act of mortgage as separate lots. Plaintiff’s vendor, A. Costa, had mortgaged these lots prior to selling them to her, and defendants had been the owners and holders of the mortgage note under which the sale was made contradictorily with a . curator ad, hoe, representing the mortgage debtor, A. Costa., who was an absentee. The appraisers were duly appointed by this curator ad hoe and the mortgage creditors on the day of sale. They appraised two of the lots together at $1800, and the third lot by itself at $1000, making total amount of appraisement $2800. The curator ad hoe gave the sheriff no instructions whether to sell the property in block or separately: and the same was sold by the sheriff in block under instructions of the seizing creditor’s counsel, for the price and sum of $3675 cash. On the trial in the lower court there was judgment in favor of defendant, and against plaintiff. Plaintiff lias appealed. The various grounds of nullity set out iu the petition, are all abandoned by plaintiff’s counsel in the argument before this court, except the position that the sale is null because the lots were sold in block by the sheriff and not separately. We concur with plaintiff that the insertion in the act of mortgage of the pact de non alienando, does not invest the mortgage creditor with the right to disregard the forms of law in making the forced alienation of his mortgage debtor’s property. We think the non-alienation clause springs from the agreement of the parties and not from aprohibitory law, based upon motives of public policy forbidding tbe transfer of property so mortgaged. The advantage of this clause is to save the mortgage creditor the necessity of resorting to the delays of the hypothecary action. He can proceed to [12] enforce Ms mortgage directly against Ms mortgage debtor without reference to the transferee of that debtor. But still the transferee is subrogated to his vendor’s rights by virtue of the purchase, and has sufficient interest in the object of the contract of mortgage to sue to annul the sale if the forms of law have not been complied with by the mortgage creditor of his vendor in making the forced sale. But from a careful examination of the law and the evidence in this case, we cannot concur with plaintiff that the sale is null because the lots and improvements were sold in block and not separately. The property sold in block for a much larger price than its appraisement, wMck was made separately. There is no evidence that the bystanders would have bid a greater price if the offering had been made separately. But what right has this plaintiff to complain of the sale of property which she only held subject to the rights of her vendor’s mortgage creditor ? With the non-alienation clause she could not expect to be made a party to the sale. She occupied no better position than her vendor, and the sale was made contradictorily with him, through the curator ad hoe 'appointed by the court; and we regard the sale as valid. Even if the defendant in execution had the right to require the property to be sold separately, which we do not admit, still the objection now comes too late after the sale has been made contradictorily with the curator ad hoe. We cannot now permit that objection to be set up to the title acquired by the purchaser. (10 A. 725, 726). The officer who made the sale in this case testifies that the curator was present and appointed an appraiser, but did not require Mm to sell the property separately; and this is corroborated by the evidence of the curator ad hoe himself. The objection that the property was sold by the sheriff in block now comes too late. (See the case of Taylor v. Graham, 18 A. 656.) Eor the reasons assigned wo are of opinion that the plaintiff has failed to make out her case, and her action of nullity must be dismissed. It .(3 therefore ordered that the judgment of the District Court be affirmed with costs.