I concur in the conclusions of Justices Spofford and Lea, although I do not think it necessary to decide the question whether an action to recover an entire succession is susceptible of mortgage ór not.
In my opinion, where the heir is present and recognized, or where the creditors have accepted the succession for him by the seizure of his interest in it, the succession, even if it be under administration, must be considered as in the possession of the heir. O. 0., 1985.
If the heii'S reside upon the property of the succession, and enjoy the same in a state of indivisión, their possession is apparent. If the property be under administration the administrator is their agent, and his possession is that of the heirs. Hence the mortgage attaches upon the undivided interest of one of several heirs in each and every immovable and slave of that succession. This mortgage, where there are several heirs, is not absolutely fixed and certain but movable, and by the mere act of partition, is transferred to the portion falling to the heir who has given the mortgage, leaving the portions of his co-heirs unincumbered. Act 1843, p. 44, sec. 2.
Now if the property, the movable, immovable and slaves of a succession are sold to effect a partition or for other cause, the mortgage attaches to the proceeds of the mortgaged property. 2 N. S. 231; 8 Rob. 97; 9 L. R. 200.
Where debts of the succession are to bo paid before the rights of the heir can be ascertained, the relative rights of the mortgage and other seizing creditors of the heir will be adjusted according to equity and such principles of law as are laid down in the code.
If the right of the heir to a succession under administration were to be considered as in action only, and not in possession, and the property were to be sold by the administrator, it would follow (the mortgage not attaching to the real action) that the proceeds were free from all incumbrances in the hands of the administrator.
Again, if the real action, as for instance the right of the heir to a partition were subject to the judicial or other mortgage, the mortgage creditor would have a mortgage upon the interest of the heir in all the movables of the succession, which would be instantly defeated by the partition or the reduction of the right of action, according to Art. 463, into possession.
I think, therefore, that the mortgage attached to the interest of the heir in each of the immovables of the succession, precisely as it would have done if he had bought the like interest by a single or a succession of purchases, save only the liability of the creditor to be defeated in part by the shifting of his mort*869gage by the act of partition to immovables of less value. C. C. 1434, Act 1843; 12 Bob. 450, Succession of Pigneguy.
I, therefore, concur in the decree affirming the judgment of the lower court.