dissenting. The object of this litigation is the proceeds of a Sheriff’s sale.
What was sold ? Jean A. Bumartrait's share in the succession of his father, stated in the advertisement and seizure to be one-fourth.
What did the purchaser acquire ? The right to recover, by action of partition or otherwise, all of Jean A. Bumartrait'sixitvesst in the succession of his father. This was an entire thing — an entire estate — not to be confounded with any particular objects or articles contained in the inventory of Ad/rim Bumartrait. See Ternant v. Boudreau, 6 Rob. 488, in which Simon, J., as the organ of the court, took great pains to elaborate the legal distinction. See his reasoning on pages 493 and 494.
The legality of the seizure of defendant’s interest in the estate of his father is scarcely an open question, since the decisions in Noble v. Nettles, 3 Rob. 152, and Mayo v. Stroud, 12 Rob. 105. Besides, all the parties acquiesce in its legality.
The next step in our inquiry is to ascertain what is the technical classification of the thing or object seized and sold ? It is an incorporeal immovable. C. C. 451 and 463. It is an action for the recovery of an entire succession. This action is indivisible, according to the authorities quoted above. The purchaser was put in the shoes of Jean A. Bumartrait, as heir of his father— entitled to the advantages of such a position in the distribution of Adrien Bumartrait's estate — and liable to its burdens, in contribution to debts and charges. The price of adjudication represents the estate or right which he purchased.
The Article 462 O. O. relied upon by the counsel of appellees, does not contradict the Article 463, which declares the right seized and sold to be an immovable. On the contrary, the Article 462 refers to Article 463, as explanatory of his meaning.
Was that right affected by the inscription of Voorhies' mortgage ? In answering this question, I premise that the right seized and sold had its existence in the parish of St. Martin, -because Adrien Bumartrait’s succession was opened in that parish, and because the seizure and sale was made in that parish. And this being premised, it follows, as I conceive, that the right of action for the recovery of Jean A. Bumartrait's inheritance, was affected by the inscription of Voorhies' judgment in the parish of St. Martin.
It comes within the first class of objects susceptible of mortgage, conventional, legal or judicial, in Article 3256 of the Code, which class is as follows :
“Immovables subject to alienation, and their accessories considered likewise as immovables.”
It is an immovable subject to alienation. See Article 463 already quoted, and Article 2424 of the Civil Code.
Again, Article 3296 of the Code subjects to the judicial mortgage especially, all immovables and slaves which the debtor actually owns, (at the date of inscription,) or which he may afterwards acquire. Jean A. Buma/rtrait acquired the immovable right of inheritance in this parish, after the inscription of Voorhies' judgment. I therefore say, the right of inheritance in question, *870or the action for the recovery of the inheritance (which is synonimous) was subject to the judicial mortgage of VoorMes.
But here we are met by the argument, that the estate inherited might consist solely of movables, in which case there would be an injustice or an undue advantage in favor of the holder of the judicial mortgage. This argument is nothing more than an ingenious attempt to withdraw from, view the distinction between the entire estate or inheritance, and the particular objects which compose it.
Eor the purposes of this litigation, it seems to me entirely superfluous to consider what were the kinds of effects which composed the inventory of Adrien Dwmartrait. It is very clear that Mr. Declouet, acting under the advice of his distinguished and able counsel, did not venture to seize Jean A. Dumartrait's undivided interest in any of the lands, slaves, furniture, cash, stocks, movable effects, or active debts comprised in the inventory. He seized the entire inheritance, which the law says, in terms unambiguous, in various texts, is an immovable. Eor instance, the Code treats it as an immovable in relation to prescription. By Article 1023, the faculty of accepting or renouncing an inheritance is barred by the lapse of time required for the longest prescription of the right to real estate.
It seems to me inconsistent and inadmissable that the seizing creditor should now shift his ground and say: “ I stand upon my privilege, so far as the estate-of my debtor, which I have acquired under my execution, consists of rnova-bles ; conceding to you an hypothecary right, so far as it consists of immovables.”
The judgment of the District Court, which is affirmed by the majority of this court, I cannot help regarding as a total change of the jurisprudence on this subject; yet I do not understand my brethren as declaring their dissatisfaction with the decisions in Ternant v. Boudreau, Noble v. Nettles and Mayo v. Stroud, and their intention to overrule those cases.
The decision of the District Judge is to the following effect: Adrien Dumarto’ait's succession realized, at an auction sale made by the heirs, without authority of justice, after the Sheriff’s sale, the total sum of...........$20,,140' 45
Add active debts or claims in the inventory, not sold at the public sale.................................................... 9,000 70
Total of Adrien's estate........................$29,153 15
Of which one-fourth belonged to Jean A. Dumwbrait and was acquired by Deelouet at Sheriff’s sale, amounting to............$ 7,288 28
The price of adjudication of the fourth interest of Jean A. Dwmartrait in his father’s succession, at Sheriff’s sale, was $4,000.
Now, as the aggregate of sales of houses and lands at the auction sale was $7,720, and as the aggregate of sales of slaves at the said sale was $8,901, and as these two sums bear Respectively to $29,153, total of Adrien Dumozrti’ait's estate, the proportions of twenty-six and a half per cent., and thirty and a half per cent, or thereabouts, the District Judge gives about twenty-six and a half per cent, of the net proceeds of Sheriff’s sale to VoorMes; about thirty and a half per cent, of those net proceeds to Pavy & Go.; and the remainder, say about forty-three per cent, of the net proceeds of Sheriff’s *871sale, to Beclouet, the seizing- creditor. This would be entirety correct, if the specific lands, slaves and movables had been seized and sold, and if Jean Bumartrait’s interest in these specific objects had been adjudicated for four thousand dollars. But this has not been done; and the injustice of the distribution to VoorMes is apparent, when we find from the record that the fourth interest of BumarPrait has realizéd to the purchaser, JDeelouet, a profit over and above his bid, of three thousand two hundred and eighty-eight dollars ; in addition to which, the judgment returns to him sixteen hundred and fifty-five dollars; making an aggregate of four thousand nine hundred dollars; while the total amount of his judgment against Bumartrait, with interest to the day of sale, was less than twenty-seven hundred dollars.
Thus it is seen that in the particular case, the seizing creditor who purchased the inheritance of the common debtor, loses nothing, by adjudging to the opponent the whole proceeds of the Sheriff’s sale.
Were it otherwise, indeed, it would make no difference in principle. The question is, does the inscription of VoorMes’ judgment carry a mortgage upon the property which has been, sold to a larger amount than awarded by the court below. Being impressed with' the conviction that it does, I am of opinion the judgment should be reversed.