Lee v. Packard

Wyly, J.

In May, 1869, Effingham Lawrence mortgaged half of a plantation in the parish of Plaquemines to secure his six promissory .notes for twenty -five hundred dollars each, said mortgage being in *398 favor of Pierre A. D. Casanave, or any future holder of said notes. The mortgaged property was subsequently transferred to the defendants, who assumed to pay the said notes as part of the price.

The notes fell into the hands of the plaintiff, who sued out an order of seizure and sale against the property. Thereupon the defendant, Christopher C. Packard, brought this suit to injoin the executory proceedings. The court dissolved the injunction, and he has appealed.

We think the court did not err in permitting Lee to introduce the authentic evidence upon which the order of seizure and sale was granted; and also the court did not err in refusing to allow the appellant to introduce in evidence the letter of Effingham Lawrence, the mortgageor, on the ground of irrelevancy. Therefore the bills of exceptions to such rulings were not well taken.

The purchaser of mortgaged property with the pact de non alienando occupies no better position than the mortgageor, and cannot injoin the executory proceedings, or set up any defense which the latter could not. No sale or partition of the mortgage premises can defeat the mortgage previously existing thereon. Therefore the purchase of the property by the defendants, their stipulations and agreements with Lawrence, the mortgageor, and the partition thereof among themselves, did not relieve the property of the mortgage now sought to be enforced by George-W. Lee.

The defendants, in partitioning the property and making the partial payments, could not limit the operation of the mortgage upon the whole property, because the mortgage was an indivisible obligation.

It is therefore ordered that the judgment be affirmed with costs.

Kehearing refused.