Moore v. Allain

delivered the opinion of the court.

This is an hypothecary action, in which the plaintiff seeks to make the amount due-him by his former tutor, on a final settlement of his accounts, by the seizure and sale of a tract of land, formerly the property of his tutor, and now in the occupancy of the appellant. In answer to the petition, the appellant disclaimed any title to the property, averring that he leased the same from James Erwin, as the agent of Mrs. Yeatm'an, of Tennessee. He therefore prayed that a curator ad hoc might be appointed to defend the interest of the absentee, *495wbo he prays may be cited in warranty, to defend this suit, as owner of the property, and that he may be dismissed with costs. Accordingly, a curator ad hoc was appointed, who was cited, and the case was continued for ,six months. At the next succeeding term of the District Court, no answer having been filed on the part of the absentee, the court overruled or rescinded the order for calling in the warrantor, and no further opposition being made by Allain, the court pronounced a judgment, ordering the sale of.the mortgaged property.

All those arguments which have been addressed to this court, on the part of the appellant, relate to a want of evidence of legal demand on Nicholls, the mortgagor, and the insufficiency of the affidavit at the inception of these proceedings,- and to the regularity of the proceeding in the suit of Moore against his tutor, may be answered by saying, that the defendant did not put those matters in issue by bis answer. He chose to make no opposition further 'than to disclaim any title in the premises, and to demand that the absent owner should be cited in warranty. The only questions, therefore, which this court can properly entertain are, whether the plaintiff was bound to make the person, indicated by the defendant as the owner, a party, and to carry on the suit contradictorily- with him, and whether the court erred in disregarding the call on the absentee, and proceeding to judgment without him.

It has been strenuously urged, in argument, that-the law requires the hypothecary action to be brought against a possessor of the mortgaged premises, who has some interest in making opposition, sorne right to abandon, and who has the right of possession, and not against a mere tenant, whose 3 . r . ", -it - -i • possession is that of his lessor, and who is without interest to contest the claim, to plead discussion, or to pay the debt rather than abandon the property to be sold. In prosecuting , , L 1 *1 1 ° a petitory action, it is true, the defendant m possession, who disclaims title, and indicates the name of his lessor, may be dismissed, and the person claiming title or possession must be made a party. Code of Practice, article 43. But the *496hypothecary action is governed, by different rules, and is essentially a proceeding in rem. It is an action which is brought against the mortgaged property, in order to have it seized and sold. It follows the property in whatever hand it may be found. Articles 61, 62. If the hypothecated property be in the possession of a third person, the creditor has his action against that person, in order to compel him •. 1 either to give up the property, or to pay the amount ior which it is mortgaged. Article 68. No part of the Code of Practice requires that the person in the real occupancy of ^ 1 1 ** the property shall be discharged from the action on his indicating the name of his lessor. And in the present case the plaintiff was not bound, in our opinion, to proceed against 1 , , 1 " 1 . ° „ the supposed owner, who was absent. I he appointment of cuva¿or ]l0C and notice to him, was required by the defendant, and it was not the fault of the plaintiff, if the lessor did not see fit to step forward and defend his tenant, and make opposition to the order of seizure and sale. A'delay of six months was given for that purpose, and it was not for the plaintiff to ask a judgment by default, on the failure of the absent owner, by his curator ad hoc, to answer the demand made against him by the original defendant,

The judgment of the District Court is, however, erroneous, jn rendering the appellant personally liable for costs, and in . this respect it must be reformed.

is> therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and J ° 5 reversed, and proceeding to give such judgment as ought, in our opinion, to have been rendered below, it is further ordered and decreed, that the tract of land described in the petition, be seized and sold, according to law, to satisfy the judgment recovered by the plaintiff against John Nicholls, for seven thousand nine hundred and eight dollars, together with the costs of this proceeding, and the sale of the mortgaged premises, and that the plaintiff pays the costs of this appeal.