On Rehearing.
LAND, J.[5] Plaintiff sued out executory process against the defendant. Sam S. Mims, a third person, has appealed from the decree of foreclosure. The appellant’s right to appeal is based on an allegation that he is the record owner of the property in question, and that the plaintiff is proceeding to sell the same contrary to law. The appellant alleges that he purchased from D. T. Manning as per deed annexed to his petition for an appeal. There is no allegation or evidence that Manning purchased from the defendant Logan, or any other person.
But conceding arguendo that the appellant has the same right as the defendant to urge that the decree of foreclosure issued on insufficient evidence, we will consider whether or not the authentic evidence in the record warranted the issue of the executory process in question.
On December 23, 1911, by an act passed before a notary and two witnesses, the Min-den Fruit & Truck Company, through its president, E. L. Stewart, sold to Richard H. Logan several tracts of land for $20,000, payable $7,500 in cash, and the balance in note of the purchaser for $14,375, due one year from date, to the order of the purchaser and by him indorsed. In order to secure the payment of said note, a special mortgage and vendor’s privilege were stipulated on the property conveyed in favor of said vendor or any future holder of said note. The act contained the pact de non alienando, and was declared to import a confession of judgment. The act was duly recorded on January 2, 1912. This instrument duly signed by the vendee and mortgagor contained the following recital, to wit:
“Be it known that this day before me, Arthur Dupuy, notary public, duly commissioned and sworn, came and appeared E. L. Stewart, president of the Minden Fruit & Truck Company, Limited, of Minden, La., who is herein authorized by the board of directors of said company to make this deed by resolution of this date, a copy of said resolution is hereto attached and made a part of this deed, etc.”
The mortgage note was annexed to the petition, and shows that it was duly paraphed by the notary and indorsed in blank by R. H. Logan. A copy of the resolution of the board of directors referred to in the act was not annexed to the copy of the act of mortgage.
*437Article 732 of the Code of Practice provides that executory process can be resorted to “when the creditor’s right arises from an act importing a confession of judgment, and which contains a privilege or mortgage in his favor.” The act of mortgage in question contains these two essential elements. It has been held that to warrant executory process the authority of an agent to execute the mortgage should be shown by authentic evidence. Crescent City Bank v. Blanque, 32 La. Ann. 264; Gaudoz v. Blanque, 23 La. Ann. 520; Tildon v. Dees, 1 Bob. 407. Of course, these decisions have no application to the case at bar where the mortgagor himself executed the act.
As to the necessity of proving the agency to sell by authentic evidence, the court, in the case of Snow v. Trotter, 3 La. Ann. 269, said:
“It is not material to inquire whether the power of attorney under which the plaintiff’s agent acted was authentic in form. In the act of mortgage on which the order of seizure and sale was granted, the defendants have recognized the agent’s capacity, and the mandate under which he acted is specially recited. The power of attorney formed no part of the testimony necessary to authorize the order of seizure and sale.”
The original record in that case shows that neither the tenor nor substance of the power of attorney was recited in the notarial act, but that the instrument was referred to as a mandate from the vendor to the agent, and was filed for reference.
It becomes necessary to reconsider the cases cited in our original opinion.
In Crescent City Bank v. Blanque, 32 La. Ann. 264, the act of mortgage purported to have been signed by an agent of the mortgagor, and the court said:
“The defendant, having appealed, assigns as error, patent on the face of the record, the want of authentic evidence of the authority of the agent. That such evidence was necessary is no longer an open question.”
In Wood & Roane v. Wood, 32 La. Ann. 804, the court said:
“We find that the evidence before the judge is an act under private signature, recorded in the office of the parish recorder; that the notes filed with the petition are countersigned by the deputy recorder, on the day of the registry of the act, at the solitary instance of one of the subscribing witnesses.
“An order for executory process cannot issue, unless on authentic evidence of the debt and mortgage” — citing authorities.
The case of Bonnecaze v. Lieux, 52 La. Ann. 285, 26 South. 832, was an injunction suit against the sale of property under executory process, and is stated as follows:
“In June, 1897, however, the plaintiff sued out executory process, and caused the entire property to be seized and advertised, and thereupon the six children and heirs of Mrs. Lieux enjoined, setting up the title derived from her to an individual half interest therein, and alleging that said interest had not been mortgaged by them or by their consent.”
In Bank of Leesville v. Wingate, 123 La. 386, 48 South. 1005, the mortgage was executed in the name of Powell Bros. & Sanders Company, Limited, by W. H. Powell, president; and there was no authentic evidence of the authority of the president to grant the mortgage. Inter alia, the court said:
“In the case at bar the question is not one which goes to the identity of the persons. It goes to the debt itself, as to whether it is proven by authentic evidence.”
In Interstate Trust & Banking Company v. Powell Bros. & Sanders Co., Ltd., 126 La. 22, 52 South. 179, the gist of the decision is stated in the syllabus as follows:
“Executory process on a notarial act of mortgage executed by the president of a private corporation will not lie, in the absence of authentic proof of the president’s authority to act in the premises.”
None of these decisions are applicable to the case at bar, where the purchaser and mortgagor himself signed the act, hypothecating the property to secure the payment of a part of the purchase price, represented by his note, indorsed in blank.
*439The notarial act signed by the defendant furnishes full and complete authentic evidence of the debt and the mortgage. The note attached to the petition furnishes authentic evidence that the debt is due to the holder, the plaintiff.
In Snow v. Trotter, supra, the court held that the power of attorney to sell formed no part of the evidence necessary to authorize the order of seizure and sale. This ruling accords with article 732 of the Code of Practice, which provides that executory process may be resorted to “when the creditor’s right arises from an act importing a confession of judgment, and which contains a privilege or mortgage in his favor.”
Article 733 of the Code of Practice provides as follows:
“An act is said to import a confession of judgment in matters of privilege and mortgage, when it is passed before a notary public, or other officer fulfilling the same functions, in the presence of two witnesses, and the debtor has declared or acknowledged the debt for which he gives the privilege or mortgage.”
The next article declares that, when the creditor is in possession of such an act, he may proceed against the debtor by causing the property subject to the privilege or mortgage to be seized and sold. The Code of Practice requires no other proof, but provides that the debtor may arrest the sale by injunction on certain grounds. In the case at bar the debtor and mortgagor has neither appealed nor enjoined. The appellant is a third person, claiming ownership by virtue of a deed of sale from another third person, and his right to appeal is doubtful. But conceding his right to appeal, he is in no better position than the defendant.
It is therefore ordered that the decree below be affirmed, and that the appellant pay costs of appeal.
PROVOSTY, X, being absent on account of illness, takes no part on the rehearing, granted in this case.