Succession of Patrick

Ludeling, C. J. Mrs. Ursin Soniat had a judgment against the succession of Patrick which she transferred to J. C. Goodrich. He caused a fi. fa. to be issued under said judgment, and under it the sheriff seized property of the succession, to sell which an order had previously been petitioned for by the probate court, to enable the executor to pay the debts of the succession. The executor it seems injoined the sale under the judgment of Soniat, and Favrot, the curator ad hoc, appointed to represent Goodrich, the transferree of Soniat’s judgment, ■in the injunction suit, filed for Goodrich on intervention opposing the application as far as it sought to sell the property, which had been ■seized by the sheriff under the said writ. Waiving the question whether a cmator ad hoc had a right to interfere in any other proceeding or suit than that in which he was appointed to act, we are of the opinion that the court erred in not granting the order prayed for by 155 the executor to sell the property to pay the debts of the estate. Succession property can not be sold under ajft. fa. 1 An. 173. The executor was in possession of the property, and the probate ■court had jurisdiction to order the sale. The creditor had a mortgage on the property but he saw fit to pursue the via ordinaria, and having elected that mode of procedure he could not have been allowed to change it after he had obtained a judgment, even if he had attempted to do so, which he has not done. 2 La. 547. No injury can result to the judgment creditor if he has a mortgage superior to other ■creditors, by authorizing the sale by the executor. It is therefore ordered and adjudged that the judgment of the lower ■eourt be amended as follows: It is decreed that the sale of all the property belonging to the succession of Jesse C. Patrick be sold to pay the debts of the succession, according to law. It is further ordered that the intervenor, Goodrich, pay the costs of the intervention and of this appeal.