Concurring Opinion.
DeBlanc, J.Daniel M. Bondurant left, as his heirs-at-law, three sons, Albert, John, and Horace, and a grandson, Walter E. Bondurant.
On the fourth of December, 1852, the whole of the property belonging to. the succession was sold at auction, and bought by his three sons for §148,474. Two days after, on the sixth of said month, the deed from the sheriff to them, was recorded, and it was not re-inscribed until the eighth of September, 1865. Since that date, more than eleven years have elapsed, and the re-inscription has not been renewed.
Of the price of said property, one fourth was due by the purchasers to Walter E. Bondurant, and was to be paid to him at his majority, on the fifth of March, 1862, with interest. That claim was secured by mortgage, containing the stipulation which has been and still is confounded for ■ “ the pact de non alienando.”
In 1854, on the thirtieth of November, Augustus C. Watson purchased from John Bondurant the land acquired by the latter and his brothers from their father’s estate, and subject to the mortgage of the minor Walter. On the fifth of August, 1872, said Watson sold to his sons, Augustus and Frank, the land thus acquired by him from John Bondurant, and, on the sixth of December, 1875, by purchase of his brother’s share, Frank Watson became the sole owner of the whole. ■
Walter E. Bondurant brought suit against his uncles, to enforce his mortgage, and, on the fourteenth of November, 1867, obtained a judgment against them, with a recognition of said mortgage. Under an alias writ of fi. fa., issued from said judgment, the land bought by Frank Watson from his father and brother, was seized on the fifteenth of June, *131875. On the twenty-eighth of said month, he enjoined the execution, or the grounds:
First — That the mortgage in favor of Walter E. Bondurant has perempted for want of re-inscription;
Second — That he is a third possessor; that he was not made party to the suit in which the said Watson obtained the judgment he is seeking to execute against him, and that, as third possessor, he -was entitled to and was not given the notice prescribed by law.
In answer to plaintiff’s injunction defendant alleges ;
First — That, in the contemplation of the law and by the effect of the pact de non alienando, the whole of the land mortgaged remained in the hands of the original debtors ;
Second — That, except in certain, specified cases, peremption does not run against minors.
In the act of sale from the sheriff to Albert, John, and Horace Bondurant, there is the clause which, for over forty years, has been construed and enforced as the pact de non alienando. Does that clause prohibit the sale of the mortgaged property ? It does not. John Bondurant had the right to sell; he sold. Frank Watson had the right to buy; he bought. The several acts of sale passed from 1854 to 1875 were duly recorded and became as many notices to the world. 8 R. R. 165, Ducros vs. Foster.
In disregard of those recorded titles, under an execution issued or a judgment against John, Albert, and Horace Bondurant, a tract of land which had ceased to be their property, which was no longer in their possession, was seized to satisfy said execution, and that land was so seized with the full knowledge that it was then the property and in possession of Frank Watson. Is not that seizure a manifest violation of the spirit and letter of our law ?
At the date of the seizure, Frank Watson was, and he is now a third possessor : as such, he should have been called upon to pay the mortgage claim, if any such existed, or surrender the hypothecated property. This done, and he failing to discharge the debt, the property should have been seized under proceedings instituted against him, the owner and possessor, and he should have been notified, as the law requires, of the seizure and intended sale of his property. To this rule, in law, there is no exception. There are not, in Louisiana, two classes of third possessors of mortgaged property, one against -whom the creditor must proceed regularly, and another whose title may be divested without even the necessity of a single notice.
It is contended that, when the creditor proceeds under an act which contains the pact de non alienando, he can seize, not only from the owner and possessor, but from the first vendee and original mort*14gagor and sell, as belonging to the latter, the property which the vendor and mortgagee, knows to have been sold by his debtor, and to belong to another. Is it not time to correct an unjust practice, an abuse, and to discountenance an arbitrary exception to the sound and equitable rule of our Codes ?
In Louisiana, when it was a Spanish colony and under the Spanish law, the clause de non alienando absolutely prevented the transfer of hypothecated property, and any transfer made in contravention of that clause was a nullity. It impeded what our legislation favors, the transmission of property. In the first of its decisions on this question the Supreme Court said that “ the mode of proceeding under an order of seizure and sale was, in a great measure directed, by the Spanish law, under which any transfer made in violation of the clause ele non alienando was, ipso jure, void as to the creditor.” 2 N. S. 34 and 35.
, That law can no longer be invoked, not even under the pretense that it is not repugnant and contrary to our Code, and, nevertheless, from time to time the colonial rule supersedes the State law. C. C. of 1825, art. 3521.
In lieu of the prohibition to alienate, we have the 3397th article of our Code, which provides: “ that the debtor can not sell or mortgage to the prejudice of a previous mortgagee.”
Is a vendor’s right in any way increased by the insertion, in an act of sale, of a clause in and by which the purchaser, adopting the very expression of our Code, binds himself not to sell the mortgaged property to the detriment of the vendor’s interest ?
If that useless insertion constitutes a pact de non alienando, there can be, in our State, no third possessor of mortgaged property, and the hypothecary action need never be resorted to ; for, whether written or omitted, the condition not to sell to the prejudice of the creditor, is one fixed by a law which is a part of every contract of mortgage, and, in any and every case, with or without the insertion of that clause, the creditor, under the construction contended for, may proceed against his immediate vendor, in spite of the subsequent transfer or transfers of the hypothecated property, and thus deprive the owner and possessor of those rights of defense which are not denied to even the trespasser.
The article of the Code which provides that the debtor shall not sell to the prejudice of the creditor, recognizes the debtor’s right to sell, for it also provides that, if he does sell, the creditor may follow the mortgaged property, in whatever hands it may have passed, and compel the third possessor to pay the debt or relinquish the property. As to the mode of proceeding against third possessors, the Civil Code makes no *15difference, and merely refers to the Code of Practice. C. C., arts. 3397 and 3398.
This court has decided that the third possessor of property mortgaged, with the pact de non alienando, occupies no better position than the mortgageor. This we admit; but why, in whose interest, under what law is he entitled to less than the mortgageor ? To exercise his rights, to enforce his claims, the creditor must cause the property to be seized and sold. It is more difficult to seize it when it is in the hands of the third possessor, than when it is not, and from one who has parted •with title and possession ?
Though the third possessor occupies no better position than the mortgageor, he has at least the privilege of paying the debt and retaining the property. Under the actual jurisprudence, not the Codes, in order to enjoy that acknowledged right, he must guess that the mortgage claim is not satisfied, who holds that claim, which may have been thrown in the channels of circulation, and how, when, where, and by whom his property is to be sold.
If such a course be sanctioned, what shall become of the constitutional prohibition to deprive any one of property, without process of law ? With the legal value given to the pretended pact, there is not left •a vestige of that process. Without any demand, written or verbal, without notice of the parody of a seizure, still more, under a decree rendered against A, a writ issued from that decree, commanding and which could command but the seizure of A’s property, the property of B is seized, advertised for sale, and sold.
Sooner or later, we will have to choose between our own law and the .sprout of a law which has passed with the Spanish dominion.
I concur in only the conclusion of Mr. Justice Marr.