dissenting. The question is, can the title of the purchaser-at tax sale be attacked collaterally by a judgment creditor of the-former owner, which judgment is based upon a debt secured by mortgage with the pact de non alienando ?
The sale before us is presumed to be valid, because the officers of the State are presumed to have done their duty in assessing the taxes- and in alienating the property to enforce the collection thereof.
If the formalities of law have been observed (which we are bound to *506presume) this sale freed the property of the mortgage now sought to be enforced aginst it, because the debt for which it was sold is of higher rank than the mortgage. The privilege for taxes is superior to any mortgage granted by the former owner. No one can encumber his property so as to defeat the right of the State to enforce the collection of its revenues.
It is well settled that a sale enforcing a superior mortgage or privilege relieves the property from subordinate incumbrances. A junior mortgage creditor, finding that the property has been sold under a superior mortgage, and believing that the formalities of law were not observed in the foreclosure of the prior mortgage, can not attack the sale collaterally, by seizing the property under his own judgment. He must bring a direct action.
The fact that his mortgage contains the non alienation clause is of no consequence. If the sale under the prior mortgage was formal and the proceedings regular, it wiped out the junior mortgage. It relieved the • property entirely of it. The non alienation clause, of course, falls with the mortgage.
The sale under a prior mortgage, unless affected with an absolute nullity, can not be disregarded by a junior mortgage creditor, whether his mortgage contains the pact de non alienando or not. For relative nullities it must be attacked in a direct action.
Here the plaintiff is in possession under a recorded title ostensibly valid, and the sale at which he bought was to enforce a debt superior in rank to that of the attacking mortgage creditor.
Until that sale is set aside in a revocatory action, contradictorily with all parties in interest, in my opinion, the mortgage creditor can not proceed to enforce his mortgage; because whether he has a mortgage or not still existing on the property, depends upon the result of the inquiry whether the sale to enforce the superior debt was formal and valid Until this result is ascertained, in a proper proceeding, the formalities necessary in a tax sale are presumed to have been observed by the officers of the State; and the sale to the plaintiff is presumed to be valid.
It is only simulated sales that may be disregarded; actual contracts, though in fraud of creditors, must be attacked in a direct action.
In my opinion Peter Marcy, the mortgage creditor, has mistaken his remedy. He had no right to seize the property and treat the title of .the plaintiff as an absolute nullity.
In this proceeding, which is an injunction suit, he can not assail the .title of the plaintiff and have its nullity pronounced, because neither the tax collector nor McKinney, the debtor for the taxes, are made parties. I have never heard of a sale being annulled by a court in the Absence of the parties thereof.
*507The plaintiff, the purchaser, is the only party to the sale who is 'before the court, yet it is gravely insisted that it is proper for the •court to pronounce the nullity of the sale and thereby destroy the contract, condemning parties without a hearing.
A tax sale is a lawful sale and like every other forced alienation, it is liable to be avoided for relative nullities. But I have yet to learn that the form of proceeding to ascertain these relative nullities is different in a tax sale from that in a judicial sale. Both kinds of sale are made upon the faith of the State. They are not snares laid to entrap honest bidders. The title given by the State, like that acquired at a judicial sale, is presumed to be valid, until the contrary is shown in a legal manner.
A title derived at such sale forms no exception to the universal rule that actual sales can only be annulled in a direct action contradictorily with all the parties thereto.
For the reasons stated I deem it my duty to dissent in this case.
See 23 An. 44, 331; 13 An. 155; 14 An. 560; 17 L. 517; 6 E. 21; 6 E. 152; 14 An. 495; 4 An.439 ; 3 L. 476; 1 An, 297 ; 6 L. 268; 9 L. 542 ; 4 L. 473 ; 8 L. 423; 1 L. 491; 11 L. 438.