The judgment of the court was pronounced by
Rost, J.The widow of Joseph Savary intervened in the marriage contract between the defendant and her husband, and made a donation to the future wife and her children, of the right of habitation in a bouse in the city of New Orleans, and of certain rights of use of the town lot on part of which it is built, on .condition that, in case of the sale of the property by the donor, or of the death of said donor, those rights of use and habitation should cease to exist, and the donor, ox her succession., should, in either case, pay the future wife the sum of $1,000, as an indemnity, within one month from the death or sale. This contract was *173inscribed in tlie office of the recorder of mortgages, five days after its date. Subsequently, the widow Savary gave the plaintiff a mortgage on the same town lot, and the certificate of the recorder produced on that occasion shows the property to have been free from mortgage in her name, and makes no mention of the donation. The debt, to secure the payment of which the mortgage was given, not having been paid at maturity, the plaintiff obtained a judgment upon it, on the confession of Mad. Savary, and caused the house and lot in controversy to be seized and sold under execution. The inscription of the marriage contract and the encumbrance it creates upon the property, were notified to the bidders at the time of the adjudication, and are related at large in the sale made by the sheriff.
The plaintiff has instituted this action to compel the defendant to surrender to him tire possession of the premises, on the following grounds: 1. That the plaintiff had no notice of the encumbrance, at the time he took the mortgage. 2. That the mortgage was a voluntary alienation of the property, to the amount of the debt. 3. That the giving of the mortgage and the subsequent confession of judgment on the mortgage debt, constitute the sale by the sheriff the voluntary act of Mad. Savary; and that, in consequence of said sale, the rights of use and habitation claimed by the defendant, have censed to exist, 4. That the right of Mad. Savary to annul the donation, by selling the property, was not personal, and could be exercised for her by any of her creditors, and particularly by a mortgage creditor.
The defendant denies all the allegations of the petition, and alleges that the sale ofthe property by the sheriff, cannot be viewed as being a sale by the widcno Savary, and is not the dissolving condition contemplated by the parties in the act of donation; that should the court be of a different opinion, the plaintiff is bound to pay her the indemnity stipulated in her favor by the contract establishing the servitude complained of.
The court below, being of opinion that the mortgage and subsequent sheriff’s sale put an end to the rights of use and habitation of the defendant, and that she was equitably entitled to the indemnity claimed, gave judgment in favor of the plaintiff, on condition that he should pay her the sum of one thousand dollars. From this judgment the plaintiff has appealed, and the defendant asks that it be amended in her favor.
The inscription of the marriage contract being anterior to the date of the mortgage given to the plaintiff, affected him with notice, and his right to recover rests solely upon the question, whether the donation was dissolved by the sheriff’s sale. Writers on the civil law assert that, a mortgage is a species of alienation. This is true, but it is not a sale, and the contract in this case is only to be dissolved by a sale. A mortgage is the alienation of aright in the property, not the alienation of the property itseif. Perfect ownership becomes imperfect when the property is mortgaged, by the alienation of that real right; but the title and the possession still remain in the owner. Troplong, Hypoth. 2d vol. art. 386. Merlin, Rep. de Jurisp. verbo Hypothéque, sect. 2d, § 3, art, 1. Civil Code, arts, 3246, 3248.
The fact of giving a mortgage, no more implies the debtor’s assent to the judicial sale subsequently made to satisfy the debt thus secured, than the fact of contracting an ordinary debt would imply it. The probable intention of Mad. Savary when she gave the mortgage, was to pay the debt at maturity and have the mortgage released. It cannot be presumed that she intended to violate her obligation. The law views the' property of debtors as the common pledge of their *174creditors, and the right to have it sold does not depend upon the nature of their obligations, but is inherent to the obligations themselves, whatever they be. As long as the other creditors of Mad. Savary did not interfere, the only additional right which the mortgage gave the plaintiff, was that of having the mortgaged property seized and sold first, instead of proceeding as the law provides in ordinaiy seizures under execution.
The fact that the widow Savary honestly confessed the justice of a claim against which she had no defence to make, has no material bearing on this controversy. The nature of the evidence upon which a judgment is obtained does not affect the general rule that, in sales under execution the law neither requires nor presumes the assent of the judgment debtor. See Domat. b. 1st. tit. 2, sect. 13, no. 9. Troplong, De la Vente, nos. 17, 432, 584, 585. Sales under execution are regulatinns of the use of property falling within the eminent domain of the sovereign. He alone speaks in the writ, commanding the sheriff to seize, take into his custody, advertise and sell the property of debtors; he alone passes to the purchaser the titles of the former owner. In the words of Troplong, it is justice alone which sells. Troplong, Vente, art. 584.
Our courts have uniformly considered that sheriff’s sales were made without the consent of the debtor, and have accordingly held that, the laws regulating the manner of making those sales, should be strictly pursued. 11 Mart. 611, 710. But if the positions assumed by the plaintiff’s counsel were conceded, an insuperable difficulty would still remain. The counsel has attempted to establish them by analogies and legal inferences, which no one but a lawyer can understand. Js it to be supposed that the illiterate woman who entered into the contract under consideration understood them, and had them in contemplation at the time. Every condition attached to a donation, must be performed in the manner that it is probable the parties intended that it should be. In the interpretation of donations, words must be understood in their usual signification and popular use; and where the intention of the parties is doubtful, the doubt should inure to the benefitof the donee. Civil Code, arts. 2032, 1940, 1952.
We are well convinced that the only dissolving conditions contemplated by the parties, were either an ordinary sale effected by the donor personally for a price agreed upon by her, or her death happening during the continuance of her possession; and whatever may be the real or supposed analogy between the sale intended and that which took place, we are not at liberty to extend the condition from onecase to the other. Pothier, Oblig. no. 206.
The last ground taken by the plaintiff’s counsel is answered by what precedes; and moreover, no creditor can annul a contract made by his debtor, before the time his debt accrued. Civil Code, art. 1988.
For the reasons assigned, it is ordered'that the judgment in this case be reversed, and that there be judgment in favor of the defendant, with costs in both courts.