Frere v. Mentz

Howell, J. This is a proceeding b3 third opposition in which plaintiff claims by preference the proceeds of property subject, as she alleges, to her rights of mortgage against her husband, recognized in w-judgment obtained by her against him and duly recorded. The defendant, who caused the property to be sold under an execution, attacks tlie judgment of plaintiff against her husband as fraudulent and collusive; avers that if she was. entitled to any judgment, it is satisfied; that the whole and not the undivided half sold at his suit of the property in question is liable to her claim, if any she have; and that a certain pretended daiion enpaiement from the husband to plaintiff, the wife, was fraudulent, and he prays that the said judgment and [547] dation en paiement be declared fraudulent, collusive, null and void, and that tbe sheriff he ordered to pay the proceeds in controversy to him. To this demand for nullity the plaintiff sets up the prescription of one year. The counsel for defendant, in his brief, presents the following proposition : “ The question on the point of prescription is, whether one, in the enjoyment of a right or possession of property, can be ousted of the one or evicted of the other by a party claiming by paramount title, without having the right to question the validity and fairness of his adversary’s title, after a certain period;” or thus: “our exception of fraud and collusion is never too late, under the rule of quae temporalia, as long as plaintiff seeks to oust us under her fraudulent judgment.” It will be observed that iu this the only question for determination is, whether or not defendant can properly invoke the rule quae temporalia, etc., that is, is he in the position to use the charge of fraud as a shield rather thau as a weapon of attack *? In our opinion the defendant is not in the enjoyment of a right in the sense which authorizes the application of the rule invoked by him. It is true he may be said to be in possession or enjoyment of a right of mortgage from the date of the execution of that mortgage, which right ho is entitled to have enforced against the property affected by it; but the plaintiff is in possession of a similar right attaching to the same irroperty, and by our jurisprudence neither can prevent or enjoin the. other from enforcing such right upon the property so affected; but they must make claim to the proceeds, as has been done in this proceeding, and the success of each depends on the virtue or rank of the respective rights. When thus presented, apparently in duo and regular form, if one claimant wishes to evade or destroy the right of the other, which appears to be paramount to his, he must directly assail it, not in the form of an exception, with a view of maintaining-himself in his secured position, but by an attack to obtain a better position than ho seems or claims to occupy. In another view, both are seeking to get possession of funds to which both claim a right, and the rank of the right of one must be destroyed in order that the right of the other may be maintained or effectual. Such is defendant’s position. He must destroy or remove the apparently paramount right of plaintiff before his right is msfae effectual or available. Hence ho is not in a position to invoke the rule quae temporalia, etc. We think there is force in the position taken by him that the mortgage of the plaintiff attaches to the whole property, the bne undivided half of which has been seized under the execution of defendant, and that in order to sustain a judgment giving her the whole of the proceeds of said half, it should appear that the proceeds of the whole [548] property would not more tlian satisfy her claim. For aught that appears in the record the whole property is sufficient to satisfy the balance actually due her (whatever it may be) and leave a surplus for defendant. As well said by his counsel: “A third possessor is not personally liable to the mortgage claim. C. C. 3400 [3402]. He has ¡his option to pay the debt for which the property is mortgaged or give it up. In the case, therefore, of a third possessor, holding a fractional part of the whole of the mortgaged property, he can only be compelled to pay the mortgage in proportion to the value of the part held by him to the whole of the property as an entirety.” It is the property of a third possessor in this category, the proceeds •of which are involved herein, and the case must be remanded on this point. It is therefore ordered that the judgment appealed from be reversed and that this cause be remanded to the lower court to be proceeded in according to the views herein expressed and according to law, costs of appeal to be paid by plaintiff and appellee.