*283Same Case. — On a Re-heahing.
Yookhies, J.Upon a careful review of article 2428 of the Civil Code, we have coiñe to the conclusion that the doctrine of our former opinion is too broadly laid down.
By the alienation, of which mention is there made, must be understood a sale, donation or exchange. This article is borrowed from the 13th law of title 7th of 3d Partida, which is explicit upon this subject. With regard to incumbrances, such as mortgages, which the defendant may create during the pendency of the litigation, it is evident that they must, apart from the' provisions of the article, fall with a decision adverse to the defendant’s title. And, indeed, the same may be predicated of the alienation of the property under the same circumstances. The reason is the same: in one case the party sells, and in the other mortgages the property of another person. 0. 0. 2427,3267.
Article 2428 is the corrolary of article 2427, which declares that the sale of a thing belonging to another person is null; and when, pending the litigation, the defendant alienates the property in revendicalion, the former article considering it “ as a sale of another’s property,” goes on to give to the plaintiff, whose title is recognized, the right to be put in possession, notwithstanding the alienation.
The law considers such a transfer as a fraud upon the owner on the part of the transferror, if not of the transferee.
The sum and substance of article 2428 is that the owner of property, who has sued in revendication, is entitled, upon rendition of judgment in his favor, to be put in possession by virtue of such judgment, even if the defendant has alienated the property during the pendency of the action.
But a party who institutes the hypothecary action, cannot interfere with the right of the defendant, as owner, to alienate the property during the pendency of suit, — for two reasons : first, because, in the words of the article, this is not the sale of another’s property ; and secondly, because the plaintiff, however successful, is not entitled to the possession of the property.
With regard to the rights of mortgagees, this matter is susceptible of further illustration. To have effect against third persons, mortgages must be reinscribed after the lapse of ten years, notwithstanding the pendency of suit.
In the case of McElrath v. Dupuy, 2 An. 523, a case where the point was made, that pending the litigation, the object of which was to enforce the mortgage, no prescription ran between the parties, this Oourt said, quoting the case of Shepherd v. The Cotton Press, 2 An. 100, “We there held with regard to inscribed mortgages, that the delay of ten years is in all cases fatal; and if it be permitted to expire without a reinscription, the mortgage loses rank, and that a litigation between the mortgage creditors does not dispense with reinscription.” The same doctrine was held in the case of Hyde v. Bennett, 2 An. 800. In the case of Young v. City Bank, 9 An. 194, the Court said : “ Under this article (3333), it has been held that the reinscription as prescribed, is indispensable to the enforcement of the mortgage against third persons, and that the institution of a suit on the mortgage, or a litigation in respect to it, does not dispense with it.”
If a reinscription of the mortgage within the ten years is necessary in order to maintain its force against an innocent purchaser, a fortiori, is it essential that it should be recorded in the first instance in order to produce effect agajnst a, third party without actual notice.
*284The ease'of Cantereau v. Lecaze, 9 An. 257, cited by defendant, is not in conflict with the previous decisions cited, for the demand which operated as constructive notice in that case, was the revocatory action. And so also it was held in Gillespie v. Cammack, 3 An. 252; Gales v. Christy, 4 An. 295.
It is, therefore, ordered, adjudged and decreed by the Court, that the judgment heretofore pronounced by us be set aside and avoided ; and it is now ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, with costs.