delivered the opinion of the court.
This is an hypothecary action instituted against a third possessor, on an act bearing date the 29th of March, 1825, and importing confession of judgment. No opposition is made to the amount allowed by the District Court, or to the right of the plaintiff to recover it in this action, but the heirs of Walker have intervened, praying to be paid by preference out of the proceeds of the sale, the amount of a legal mortgage, anterior in date to that of the plaintiffs, and existing in their favor upon the same property.
It appears, that in 1824, Gerard Chretien, the original debtor of the plaintiffs, and at that time the owner of the mortgaged premises, became security on the bond of the curator ad bona of the intervenors, and that in the same year the bond was recorded in the parish where the property is situated. That the curator died without having rendered his account, and left no property; the account of the claim of one of the intervenors was liquidated contradictorily with the curator, and the others aver, that they are ready to prove the amount due them.
The third possessor opposes this claim on various grounds, and alleges particularly, that the intervenors have no mortgage or privilege upon the property. Judgment was given in favor of the intervenors in the court below, and the third possessor appealed. We believe, that under the Spanish * ^ a laws, which were still in force in 1824, a legal mortgage *246existed in favor of minors, upon the property of the sureties of curators ad bona, and that the bond in this instance having been duly recorded, operated as a legal mortgage upon the property specially mortgaged to the plaintiffs. But in 1825 the law was changed. The article 3317, of the Louisiana Code, makes it necessary that all mortgages, whether conventional, legal or judicial, should be recorded ; and article 3333 provides, that the registry shall preserve the evidence of mortgages during ten years, but that their effect will cease, even against the contracting parties, if the inscriptions are not renewed, before the expiration of that time, in the manner in which they were first made. Mortgages to which husbands, tutors and curators are subjected by law are alone excepted from this rule. No exception is made with respect to the legal mortgage which existed on the property of the surety of a curator under the laws of Spain ; and as more than ten years elapsed between the promulgation of the Louisiana Code and the intervention of the heirs of Walker in this suit, without the inscription of their mortgage being renewed, we conclude, that the effect of the mortgage has ceased, and that the plea of the third possessor is well founded in law.
Oil the adoption of thelioui-siana Code in 1825, all mortgages, whether conventional, legal, or judicial, are required to be recorded; and in order to preserve their evidence, the inscriptions of mortgages must be renewed before the expiration of ten 3rears; otherwise, their effect ceases after the expiration of that time, even against the contracting parties. Mortgages to which husbands, tutors and curators are subjected by law, are the only ones not requiring registry by the Code; but under the Spanish law, there is no exception made with respect to the legal mortgage on the property of the surety of a curator. So, where more than ten years elapsed, after the promulgation of the "Louisiana Code, before the minors asserted their claim against the surety of their curator ad bona, and without the re-inscription of their legal mon-the effect of the mortgage ceased and it could no longer be enforced against the property on which it previously existed.*246Gerard Chretien has intervened and claimed title to the mortgaged premises, and the third possessor has joined issue. That issue cannot be tried in the present suit, nor can the judgment rendered therein affect in any manner the ultimate rights of the parlies to the property. Whoever be the owner at this time, the plaintiffs are entitled to their remedy.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, annulled and reversed ; and proceeding to give such judgment as ought, to have been given in the court below, it is further ordered, adjudged and decreed, that the intervention of the heirs of Walker, and so much of that of Chretien, as relates to the question of title to the mortgaged premises, bo dismissed at their cost in both courts ; and that the said mortgaged premises be seized and sold to foreclose the mortgage, and pay *247the plaintiff the sura of two thousand seven hundred and forty-six dollars, with ten per cent, interest on sixLeen hundred dollars, from the 31st of March, 1837, until paid, and costs.
T . - , 1 i TTI-ii , i /. , * It is further ordered and adjudged, that the defendant pay th e costs of this appeal, taken between her and the plaintiffs.