The plaintiff, as owner, injoined the Sheriff and his deputy from executing a judgment in the suit of P. Marcy v. K. W. McKinney, on a certain plantation, and from demolishing or removing the houses, fences and cisterns therefrom.
The defendants pleaded a general denial, but admitted the attempt to dispossess the plaintiff' by executing, in their official capacity, a writ of fieri facias in the cause of Peter Marcy v. K. W. McKinney, and •in an amended answer they aver that all the formalities were observed ■and notices given in the execution of the said judgment, that plaintiff, .asserting a claim to the mortgaged property, was notified as third possessor and the execution proceeded with, the sale under which he ■claims being void on its face, and McKinney remaining iu possession.
Peter Marcy intervened to defend the suit, alleging that he has a .judgment against the said McKinney recognizing a mortgage on the property in controversy, on which he caused an alias fi. fa., to issue; -that plaintiff, claiming to be the owner, has injoined the same without -making intervenor a party ; that plaintiff has no title to said property, his pretended title being derived from two tax sales, made without .•observing any of the formalities of law and in collusion between him. *504and McKinney to defraud creditors, and specially plaintiff; that after the said tax sales, intervenor, learning that McKinney, in order to defraud! him, had obligated himself to plaintiff not to redeem the said property, did, within the legal delay, offer and tender to plaintiff the amount of the purchase price, principal and interest, costs and penalty, which was refused on the ground that the land could be redeemed only by McKinney; and that, before proceeding with the execution, the notices and demands necessary in hypothecary actions were made and given and he prayed that the title of plain tiff be declared null, the injunction be dissolved, and plaintiff condemned to pay damages for retaining said property in possession. In an amended petition he avers further that he was joined by said McKinney in the offer to redeem the said land, which offer, within the legal delay, defeated plaintiff’s title, which was-affected by a resolutory condition ; that plaintiff never had possession of the land which remained in McKinney; and he prays that the injunction be dissolved and the sheriff ordered to proceed according to» law with the execution.
Plaintiff excepted to the right of intervenor and defendants to thus attack his title collaterally but averred that they must do so by a direct revocatory action contradictorily with all the paities to the said tax. sales, and further that they have neither alleged nor suffered any injury by the said sales, as at their dates the said property was affected with a special mortgage, superior to that of intervenor’s, in an amount double the value of the property.
It seems that those exceptions were tried at the same time as the merits, and were maintained, and theintervenor and defendants were not permitted to introduce any evidence on the subject; and upon the trial on the other issues judgment was rendered in favor of plaintiff against the defendants and intervenor perpetuating the injunction, from which the latter have appealed.
We are of opinion that the court erred in maintaining the exceptions. The intervenor was the holder of notes secured by a mortgage importing a confession of judgment and containing the pact de non aKenand,o■ which authorized him to pursue the mortgaged property in the hands of a third possessor or owner, and when the latter injoined him in so doing-he assumed the burden of showing that the sale at which he acquired the mortgaged property divested the rights of the mortgagee thereon, and by the jurisprudence of this State, one relying on a tax sale, made-prior to the present constitution, must show the existence and legality of the assessment, which stands in such case in lieu of the judgment in ordinary judicial sales; the deed of the tax collector will not be-sufficient to establish his title. 6 N. S. 348;. 7 L. 50; 10 L. 283; 4 An. 248; 14 An. 209. In a tax sale, every formality of law must be strictly complied with under penalty of nullity,, and the; only question here is. *505whether the observance of these formalities can be inquired into in this-form of proceeding, or muse the mortgagee, in whose favor there is a-pact de non alienamdo, resort to a direct revocatory action, As said above, we can perceive no good reason for requiring a resort to a direct revocatory action. The State can not be made a party, and as to the-tax defaulter, the purchasers may be viewed as representing him in relation to the forms of proceeding. If the formalities have been observed, the title is good without reference to the charge of subsequent collusion, and if not observed, the title is not good, whether there was collusion or not. We must conclude that the regularity and validity of the tax sale, in this particular instance, may be raised by the plaintiff in the execution, and for this purpose it becomes necessary to remand the cause. It is unnecessary in this view of the case to pass on the bills of exception in the record.
It is therefore ordered that the judgment appealed from be reversed,, that the exceptions of plaintiff to the right of the intervenor and defendants to contest the validity of the tax sale under which plaintiff holds, be overruled, and that this cause be remanded with instructions to the lower court to hear evidence on the subject, and otherwise to-proceed according to law.
Plaintiff to pay costs of appeal.