Succession of Thompson

The opinion of the court was delivered by

The question presented is simply: whether an order of sale procured by an executrix to pay debts can be rescinded on a rule, at the instance of a first mortgage creditor who claims to be aggrieved thereby and who seasonably asserts the right to proceed via exeeutira, under his mortgage contract, which contains the clause de non alienando.

Adam Thompson died on August 8, 1889. His executrix qualified on the 14th, following. Three days after she prayed for an inventory, and on the 20th following, procured an ex parte order of sale of all the property belonging to the succession, the movables, cash and the immovables, part cash and part on credit, one and two years, including real estate, on which the Louisiana National Bank had a mortgage to secure a claim of §15,700, the act containing the pact de non alienando; of this claim $6,200 had matured on June 17, 1889, and $9,500 on July 5, 1889.

On August 30, the bank took a rule to rescind the order of sale obtained by the executrix, on the ground that it had'been made without notice to it, previous to the return of the inventory, before thirty days had elapsed since her appointment; that it directs the sale to be made part cash and part on credit; that it subjects the sale to the inventory appraisement.

The executrix excepted to the pi’oceedings by rule, averring that the order attacked can not be assailed unless by petition and citation in nullity or by appeal.

Before the return day of the rule to rescind, the bank filed a petition for executory process, annexing the notes and a copy of the act of mortgage.

*121On the return day (September 3), after hearing, the court overruled the exceptions and made the rule absolute, rescinding the order of sale obtained by the executrix. On the same day an order for ex-ecutory process was signed by the judge.

The executrix appeals from the decree setting aside the order of sale obtained by her to pay debts.

I.

The bank had a right to proceed by rule to annul the ex parte order of sale. The attack was not collateral, but direct. It was not leveled against any final or definitive judgment, but against an interlocutory decree, which the court might proprio motu have vacated. Such orders can be summarily undone, while final judgments may be annulled only by ordinary proceedings terminating by a definitive judgment. C. P. 604.

The rulings to which the appellant refers have no bearing. They were made in cases in which collateral attacks had been attempted, or executory process had been assailed summarily.

II.

It has been held that mortgage creditors of a succession are entitled to notice of an application made by an executor to sell the property on which their mortgage exists. French vs. Prieur, 6 R. 299. Particularly when the mortgage ranks first on the property, and the mortgage creditor complains before the day of sale. It may be different if he allow the property to be .sold.

It appears that the order of sale was made six days after the appointment of the executrix and more than a month before the return of the inventory into the court; but on these irregularities it is unnecessary to pass, however true it may be, that, before a court should order a sale of the immovable property of a succession, it should wait for the return of the inventory to know what are the assets of the succession, and until thirty days have elapsed since the appointment of an executrix, who in this regard may be assimilated to an administratrix or to a curatrix and is governed by the will and the law, while the other officials are governed by the law alone.

The rights and privileges which an act of mortgage duly recorded, containing the pact de non alienando, as does that in the instant case, secures to the creditor are important.

*122Under it he has the right to proceed at the maturity and non-payment of his claim against the property in whatsoever hands found, even against a succession; he can have it seized and sold free from any subsequent encumbrance and the sheriff and he are entitled to retain the price without giving security should he purchase, or to receive from it the amount accruing to him on his claim, without delay.

Were the order of sale obtained and the executrix not obstructed, it would deprive the mortgage creditor of the right to proceed via executiva and have the property sold for cash and without appraisement by the sheriff, all appraisement having been waived by the mortgagor in this case, and in case of purchase he would not have the right to retain the price without giving security.

The proceeds of sale, cash and notes, would go into the hands of the executrix of the deceased, who could not make any distribution of funds unless after the rendition and final homologation of an account and tableau; thus putting the creditor to avoidable delay.

While there exists no doubt that, as a rule, all the property which a person dies owning becomes subject to the jurisdiction of the Probate Court for the benefit of creditors and heirs, it is equally true, that such jurisdiction is not so absolute as to strip the mortgage creditors of the deceased of the right of proceeding summarily against such of said property as may have been affected to them, to satisfy some money claim, unless it is shown that such creditor has directly or indirectly relinquished the same, and has submitted entirely to the probate jurisdiction over the mortgaged property.

Neither can there be any doubt, that, where a creditor fails to apply within reasonable delay for executory process and the Probate Court assumes jurisdiction over the property, and on proper proceed-dings directs the sale, the creditor would be estopped by his laches from subsequently questioning the order of sale, so as to press a claim for executory process against it.

In cases of acquiescement, express or implied, or of laches, his only remedy would be to apply for a modification of the terms of sale, when not cash, if those fixed infringed on his pre-existing right to different conditions.

The cases to which the counsel of appellant refers, show that the creditor, having either formally or inferentially, or by his laches in *123some way, aquiesced in the probate jurisdiction, he was not permitted afterward, to resort to executory process.

By reference to the act of mortgage, it appears that the bank had the right to have the property sold without appraisement. As the debt was due and exigible the bank could, besides, have had the sale made for cash.

Were the order attacked permitted to be executed, the sale could not take place unless the property was bid upon for at least two-thirds of its appraisement in the inventory, and eyen then the purchaser could not be held to pay in ready money the amount of adjudication, the terms fixed by the court and announced in the advertisements being part cash and part at one and two years.

The bank is not chargeable with any fatal omission or commission, from which it can be inferred that it has consented that the jurisdiction of the probate court should attach, and that the court could direct the sale of the property at the instance of the executrix.

No intervention is shown by the bank in the mortuaria, except to protest, and it does not appear that the bank was dilatory in the revendication of its right to executory process.

The order of sale complained was obtained with unusual irregularity and haste, twelve days after the death of the debtor, more than a month before the return of the inventory, some eight days after the appointment of the executrix, and without notice to the creditor.

The debt due the bank, as holder and pledgee of the notes of the deceased, had matured quite shortly, in June and July, before the death of the debtor, which occurred as stated, early in August.

Praying for executory process, on the 30th of August, in the same month in' which the debtor died, was seasonably enforcing the right to executory proceeding. The creditor could hardly have proved more diligent.

Besides, the pact de non alienando which the contract contains is an important factor in this matter. It secures expressly the mortgagee and any holder of the notes, notwithstanding any transfer or encumbrance of the property by the mortgagor, to his injury, and it relieves him eventually from the vexations of an hypothecary action.

Surely, that which such mortgage creditor would have done, even as against a third possessor, he had the right to do against the mortgagor, or his succession, however represented, for it is clear as daylight that neither his creditors nor his heirs could, by his death, *124have acquired greater rights, privileges, or immunities, than he himself possessed, and which were cut off by express stipulation in the contract. How then can it be claimed, with any plausibility, that the executrix, by her ex parte action in the matter, could have and has stripped the mortgage creditor of the right of resorting to executory proceedings, when the mortgagor himself, had he lived, could not have done so? A mere statement refutes the pretension.

The mortgage creditor has an interest in having the property sold ■separately from the other property of the succession through the .sheriff, so as to receive the proceeds without unnecessary delay, .avoid succession costs, commission of executrix, auctioneers’ and .attorneys’ fees, etc., and the filing and homologation of an account, or tableau of distribution.

It is clear that, as the bank had the right to require a sale for cash and without appraisement, and had done no act from which it can be deduced that it has abandoned that right, and as the order assailed proposes to sell the property subject to the appraisement and on terms which are not cash, the bank had a right to complain and to .ask a rescission of the order as concerned the property, the more so as it received no notice of the application of .the executrix, which was made and granted altogether ex parte.

It will not do to say that if the terms did not suit the bank it should have intervened and sought a modification of them to cash.

The right of the bank, under the pact de non alienando to proceed via exeeutiva, not having been in any way abandoned, and the petition for executory process having been filed seasonably, must be recognized and enforced.

No case is found in the books presenting the characteristics of the instant one, in which the right of the mortgage creditor, whose contract contained the pact de non alienando, was denied the right to proceed via exeeutiva against a succession under similar circumstances.

Considering that the judgment appealed from rescinds the order of sale only so far as concerns the property mortgaged to the bank, it is affirmed with costs.

Dissenting Opinion.

The testamentary executrix obtained a probate order in the mortuoria for the sale of the property of the succession *125of the deceased, movable and immovable, to pay debts — the immovables to be sold for part cash and part on time.

The bank, as a special mortgage creditor for the sum of $15,000' on a portion of the realty included in the terms of the order, seeks, to have it vacated so that it may at once proceed via exeeutiva against the mortgaged property, and have it sold under an order of sale, which it has already obtained, though subsequently to the granting of the probate order assailed.

The grounds set out by the bank are, viz:

1. The prematurity of the executrix’ application for the probate order.

2. If executed it would divest it of material rights, to its prejudice.

The first ground is clearly untenable, because if fault there was on the part of the executrix in hurriedly making an application for an order of sale, before the completion of the inventories, and within thirty days after confirmation, it was condoned by the like haste of the mortgage creditor, in obtaining an order of seizure and sale afterward.

But, it is submitted, that the delay of thirty days which must elapse after the appointment of a curator, before an order is granted for the sale of immovables of a succession, is for the sole purpose of such curator being able to obtain adequate information “concerning the debts of the succession,” and to determine “ if it be necessary to sell the (immovables) to pay the debts.” R. C. O. 1164.

The only restraint that the law imposes upon the curator is that he “is bound to wait thirty days.” Why is he bound to wait? “In order that he may know * * if it is necessary to sell the immovables, in order to pay debts.” Then, it is merely in aid of the curator’s acquisition of that knowledge that he is required to wait.

If, then, he can obtain the requisite information before the expiration of that delay, there ceases to be a necessity for Mm to longer wait. Such is the case under consideration. Within the thirty days delay, the executrix ascertained the amount and character of the debts of the deceased, and filed a tabular statement of them, on the faith of which she claimed the order of sale. There was no necessity for additional delay.

It is further submitted that this rule does not apply to an order'of §ale of succession property granted on the application of an execu*126trix, because the Oode provides that “in default of funds sufficient to discharge the debts and legacies of sums of money, the testamentary executor shall cause himself to be authorized by the court to sell the movables, and if they are insufficient, the immovables, to a sufficient amount, to satisfy those debts and legacies.” R. O. O. 1668.

There is no delay fixed in respect to an executor.

On the other ground in my opinion there is no just cause for the revocation of the probate order of sale.

The opinion of the court says that, under the act of mortgage, “the bank had the right to have the property sold without appraisement * * and for cash.”

It follows that the executrix had not the right to have the property sold partly on terms of credit.

But it does not follow that she had no right to have it sold under her order at all. To my mind it is clear that all the bank can require is to have the terms of sale so modified as to conform to the terms of the mortgage. A mortgage is but a security for the payment of a debt — a jus ad rem, and not a jus in re. Wisdom vs. Buckner, 31 An. 57.

The debtor is entitled to absolve himself from the mortgage by paying the debt secured. His executrix has the same right, or to discharge it, as speedily as possible by sale of the mortgaged property.

In case the debtor or his executrix are guilty of delay or laches of any kind in discharging the debt or in making a sale, the right of the creditor to institute legal proceedings springs into existence, and he may procure an order for the seizure and sale of the property specially mortgaged; but' I am not aware of any penalty the law attaches to the exercise of undue haste on the part of either in discharging a debt or in effecting a sale in the effort to discharge it.

I was not apprised of the existence of any doubt of the legal right of a succession representative to procure an order for the sale of all the property of a succession for the purpose of paying acknowledged debts without first procuring the consent of mortgage creditors or giving them prior notice of his intention to apply for an order of sale.

Indeed, the Oode declares that, “if the amount of debts known is such that it is necessary to sell the whole, or a part of the immovable property which belongs to a succession, the curator shall present his petition to the judge who has appointed him to obtain an order *127for the sale of this property, or of such a part as may be necessary to pay the debts of the succession.” R. O. O. 1165.

The law does. not provide that any notice of an anticipated sale shall be given to mortgage creditors, but it merely provides that “ if the succession be insolvent the curator is bound to apply for an order for a meeting of creditors.” This meeting has for its sole object “ to deliberate on the mpst advantageous manner of selling the effects of the succession.” R. O. C. 1172.

It has no power to control the granting an order of sale at all. To this meeting all creditors, privileged and ordinary, are summoned alike.

The Code provides:

“ If, at the meeting of the creditors thus assembled, the creditors by privilege or mortgage require that the sale of the effects be made for cash, this wish in this respect shall prevail over that of the other creditors.” R. C. C. 1175.

On homologating these proceedings the judge “is bound to order to lie sold for cash so much of the property of the succession as will be sufficient to pay the creditors by privilege or mortgage * * if they require the sale to be thus made.” R. C. C. 1177.

French, Executor, vs. Prieur, Recorder, 6 R. 299, is not authority to the contrary. In that case a rule was taken to have the recorder to have certain mortgage inscriptions canceled, on the ground that certain succession property had been disposed of at public sale, by the register of wills, and that the effect of such sale was to transfer the lien of the creditor to the proceeds and pass the title free of in- ' cumbrances. This the court declined to do, and expressed the opinion that “mortgage creditors have, bylaw, certain rights secured to them in relation to the sale of property belonging to a succession; and it would seem but just that they should have some notice of an application to sell that on which their lien exists, and thereby discharge it.”

Under this state of facts the court seemed to think that a sale of mortgaged property, in a succession, by a register of wills, without notice to the mortgagors, was irregular; but it does not follow that had the sale been made, under an order of court, to pay debts, at the petition of a succession representative, the court would have so held.

*128Quite the contrary is true; for the court observes, in the same connection, that:

“There can not now be a doubt that a sale of the property composing a succession, legally and regularly made under a judgment of the court of probates, discharges the mortgages on it which may have been given by the deceased. The purchasers take it free, and the court of probate has the power to release them all.”

The record shows that the total debts of the deceased are $63,480, and the appraisement of all properties on the inventory aggregates' $111,827.06 — the value being nearly double the amount of debts. The estate is prima facie solvent, and there was no occasion for the convocation of a meeting of creditors.

The conclusion to my mind is irresistible that the bank has no right that has been impaired by the probate order, except in respect to the terms of sale contained in the act of mortgage. It has no right in law to demand the revocation of the probate order of sale, more especially when it has already procured a subsequent order for the seizure and sale of the mortgaged property. Of course there is no question of its right to thus proceed, if the executrix had riot obtained a prior probate order of sale.

The judge of the proper jurisdiction had the power to grant-cm order of sale. When he granted the probate order of sale, on the application of the executrix, and within the viortuaria, his power to grant an order of seizure and sale was exhausted.

By the former order the property was placed in custodia legis, and consecrated to the mass of creditors of the succession, subject alone to a change, or modification of the terms of sale, so as to conform to the acts of mortgage of any or all the mortgage creditors.

The identical question litigated here was squarely decided in Poutz vs. Bistes, 15 An. 606. The plaintiff had procured an order of seizure of certain mortgaged property subsequent in date to a probate order of sale granted in the viortuaria embracing the same property. The ■ court said:

“The plaintiff, after the Second District Court had issued its order of sale, ought to have applied to that court for a modification of the terms of sale, if he was not satisfied with the same. Any other rule would produce unnecessary embarrassment.”

Under similar circumstances this court, in Morere vs. Preston, 34 An. 873, maintained a probate order of sale in the succession of *129Porter, and reversed a judgment sustaining an injunction of a mortgage creditor, who had begun executory proceedings against certain mortgaged property in the succession, four years before, and the-only defect in which was the want of notice to the proper parties.

The court said:

“ The consequence is, that as to the creditors of C. O. Porter,, represented by the administrator of his succession, the property ordered to be sold was not in custodia legis, and that the probate court, having acquired jurisdiction over it before any seizure had been effected, the order of sale was improperly rendered. 15 An-636, Poutz vs. Bistes.”

Walmsley vs. Levy, 36 An. 226, is to the same effect.

Under quite similar circumstances, our predecessors said, in Tertrou vs. Comeau, 28 An. 633, of an injunction that was sued out by a mortgage creditor for the purpose of restraining a sale of succession property, on the identical grounds laid in opponent’s rule:

“It was the duty of the administrator to have the property sold, if the estate was in debt, and that fact is shown by plaintiff, who claims-to be a creditor in a sum exceeding |16,000.

“The order of sale was necessarily ex parte, and we can see no injury which can befall the plaintiff by the sale of the property. Indeed, we do not see how else he could be paid.”

In the case of Wells vs. Wells, 25 An. 194, an additional and stronger reason is assigned by the court why the probate order should be maintained. They say:

“ It is sufficient to say that a mortgage creditor has no right to enjoin a sale for want of notice of the application therefor, when the sale was ordered to pay creditors having a higher rank, or a preference-over the mortgage creditor. In this succession it has been decided that the debts for the services of attorneys and the commissions of the executor should be paid by preference over the deceased.” To the same effect are Succession of Whitehorn, 3 An. 396; Succession of Lauer, 18 An. 721; Succession of Patrick, 24 An. 154; Succession: of Tobor, 33 An. 343.

In this succession there appears one debt in addition to. such as are enumerated in the opinion cited, of over ?4,000 for taxes, which certainly prime the mortgage of the bank pro tanto. Such privileges extend to movables and immovables alike, and which, for want off sufficient movable property, must be paid from the proceedsmff the. *130'immovables, and by preference over mortgages. R. O. C. 3,252 3353, 3366, 3369.

This must be done in the mortuaria, on a tableau of distribution, and on a judgment of court. R. C. O. 1181. How can that be done if the executrix has not the possession of the funds for distribution?

The rights of the bank will be perfectly protected by requiring the executrix to furnish security, and if there be a likelihood of the property being sold at a sacrifice, it can buy on its own account, and hold the proceeds on furnishing proper security to the succession.

The opinion lays stress on the fact that the bank’s mortgage contains the pact de non alienando. Its effect is solely to prevent the mortgagor from making a conventional sale of the mortgaged property, to the prejudice of the mortgagee’s rights. In this case, no .such sale has been made, and the existence of the pact does not affect ■this case in the least.

There is, in my opinion, no question of diligence or laches in the case. If there was, the fault is certainly with the bank, because its mortgage was executed and the notes of deceased delivered on the 13th of August, 1885, and they became due at twelve months after •date. Hence, when, on the 20th of August, 1889, the probate order of sale was gxanted on the petition of the executrix, they were three years past due, and at any date within that period of time the bank could have procured an order of seizure and sale, had it chosen to do so, but did not.

This court held in Chaffe vs. Parmer, 34 An. 1017, that it was “ an administrator’s duty to obtain the highest price for the property.”

What was the executrix to do, standing as she was in the presence of five special mortgages on five different pieces of real estate of the' succession of the deceased, and aggregating $56,000 in amount?

Should she have waited longer for action by the various mortgagees, •or provoked them to commence five separate executory proceedings against the five mortgaged properties?

Had she done so, it is perfectly manifest that the added burdens of accumulated costs, commissions, attorneys’ fees, advertisements, etc., would have resulted in a ruinous sacrifice of property and pressed the succession to the verge of iñsolvency.

Had she thus waited or proceeded, in my opinion the executrix would have violated her plain legal duty. She is bound, under her •oath to protect the rights of all, whether privileged or ordinary cred*131itors, alike, and endeavor to save something for the heirs. If a different rule obtain and the rule of opponents made absolute, property specially mortgaged will be liberated from administration entirely by succession representatives.

It is with respect I submit that the opinion of the court vacating a probate order of sale of succession property, to make way for an order of seizure and sale in behalf of a mortgage creditor, is a departure from the settled jurisprudence of more than a quarter of a century, and will greatly embarrass the administration of successions in the country parishes. The conservative and salutary rule of stare decisis ought to control. For it has been wisely said: “In order to ■secure certainty and stability in the administration of law, it is a rule of jurisprudence that when a particular construction of a statute has been for a long time acquiesced in, not only by those whose personal and property rights are affected, but by those whose duty it is to execute it, the courts will recognize it as the true construction and enforce it accordingly. ’ ’

To this effect are various authorities: Hawkins & Roberts vs. Bur, 37 An. 55; State vs. Thompson, 10 An. 122; Levy vs. Hetche, 40 An. 500; Ohio Life Insurance Co. vs. Debott, 16 How. 431; Douglass vs. County of Pike, 101 U. S. 677.

For these reasons I deem it my duty to dissent.