*323The facts are stated in the opinion of the court, delivered by
Mathews, J.This is an hypothecary action against a third possessor of the mortgaged property. The defendant, in his answer, denies the existence of the mortgage; sets up title in himself, in virtue of a sheriff’s sale made on a judgement which operated as a judicial hypothecation, anterior to the mortgage of the plaintiff’s, &c. He also denies that any amicable demand r J was made on him to pay the money claimed. This we consider equivalent to a denial of the ten days notice required by law to be given to a third possessor, previous to the seizure and sale of mortgaged property in his hands.
The court below sustained the defence on the merits, and gave a final judgement in favor of the defendant, from which the plaintiffs appealed.
The record affords no evidence to shew that ten days notice had been given to the third possessor of the demand made on the original debtor, or that the former was in any manner required to pay the debt, previous to the institution of the present proceedings. It is believed that a just interpretation of the 68th and 69th arts, of the Code of Practice, and some following, requires in support of the hypothecary action, properly so called, a demand of payment from the debtor thirty days previous to notice to the third possessor, and that no process either against him or the mortgaged property, can legally be commenced until after the expiration of the ten days *324notice, which seems to be required by art. 69. Unless such notice be proven in some manner, or other proceedings against the possessor or the property, should be abated; and as this notice is not shewn to have been given in the present case, the suit should have been dismissed. This view of the case precludes the necessity of examining it on the merits.
It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be avoided, reversed, and annulled; And it is further ordered, adjudged, and decreed, that judgement be here entered as in case of nonsuit, the plaintiffs and appellants to pay the costs which accrued in the court below; those of the appeal to be borne by the appellee.