Merrick v. McCausland

Howe, J. The plaintiff claims to be a judicial mortgagee of the ■defendant by registry of June 16, 1866. Jessie B. Sims and others claim a conventional mortgage, recorded October 19, 1865. The plaintiff having caused the land to be seized for sale, and being ■embarrassed by the presence of this prior conventional mortgage took :a rule on Sims and others and the recorder of mortgages, to show cause why it should not be erased, on the ground that it was a mere pretense,, without any real consideration, or if given for any consideration ■made for notes of tlio so-called Confederate States. A portion of the defendants in rule excepted that the plaintiff could •not proceed in this summary way, but must bring a direct action, and their exception being sustained and the rule dismissed, the plaintiff has .appealed. We think the court a qua erred. It seems to be settled that “where the property of one, against whom judgment has been rendered, appears to be subject to privileges or mortgages, entitled to a preference over the judgment creditor, the latter may, by rule to show cause, as incidental to the proceedings had for the purpose of selling the prop•er.ty, call upon those claiming such privileges, or mortgages, to show •cause why they should not bo erased. The seizing creditor cau not be required to resort to a direct action against such persons holding such privileges or mortgages.” 1 An. 333. It is true that in Bank v. Delery, 2 An. 650, it was held that the litigation concerning all such privileges and mortgages was not to he cumulated with the rule, and the apparent prior incumbrancer deprived of a jury; but it was still held that he was bound to pload, the ■court having power to compel him to litigate or else to have erased from the records an incumbrance which he was refusing to execute and which might be kept on the records for purposes of collusion and fraud. It seems then that in this case the defendants in rule should plead .and not except. Whether their answer when filed will prove to he one which under the decision in Delery’s case will justify the lower judge .in declining to pass upon tho rule until the reality and validity of their [257] mortgage shall have been elsewhere decided is a matter in regard to which we aro not called upon to prophesy or adjudicate. Let the judgment be reversed, the exception dismissed, and the cause remanded for further proceedings, at the costs of appellee. Wyly, J., concurring.