(dissenting). My opinion is that we should either dismiss this appeal or remand the ease to the district court to allow appellant a hearing upon the facts shown by the record annexed to appellee’s motion to dismiss the appeal.
The mortgage notes on which the executory proceedings issued represent a part of the price for which appellant bought the mortgaged property on the 28th of June, 1912. Thereafter appellant sold the property to one Nelson A. Baker, who, in turp, sold it to a corporation styled Ulinois-Indiana Land Company. The only obligation incurred by Baker or the land cqmpany in favor of appellant was an assumpsit of payment of the notes on which this executory process issued. There was no new debt incurred nor mortgage given in favor of appellant.
The executory proceedings were instituted only against the Shell Beach Construction Company, because of the pact de non alienando in the original act of sale and mortgage. Before appealing from the order of seizure and sale the defendant sued for and obtained a writ of injunction and prevented the sale on the allegation that the plaintiff, Ouachita National Bank, was not the owner of the mortgage notes. After trial judgment was rendered in favor of the bank dissolving the injunction and condemning the Shell Beach Construction Company to pay $1,000 damages. The company did not appeal from the judgment, but paid the damages. The property seized was then readvertised and sold in the foreclosure proceedings. Thereafter the Shell Beach Construction Company obtained this devolutive appeal from the order of seizure and sale.
The appeal will present only the question whether the authentic evidence on which the fiat issued was a sufficient warrant. If we should set fiside the fiat for insufficiency of the evidence on which it issued, our decree would not undo what has been done in execution of the writ of seizure and sale. A sale made in execution of a judgment is not rendered invalid by a reversal of the judgment on a devolutive appeal for insufficient evidence. An order of seizure and sale, in executory proceedings, does not condemn the defendant to pay or do anything. It merely orders that the mortgaged property be sold. When the writ has been executed there is nothing to be accomplished by a devolutive appeal. If the executory proceedings were null for want of notice or for other such reason, the remedy would be a direct action to set aside the sale. That cannot be accomplished by a devolutive appeal from the order of seizure and sale; and that is all that the Shell Beach Construction Company can have an interest in accomplishing.
In this particular case, however, appellant would have no interest in setting aside the sale if, as the documents annexed to appellee’s motion show, appellant disposed of the property before it was seized.
For these reasons I respectfully dissent from the decree overruling the motion to dismiss the appeal.