On the Merits.
Second — An action of partition against C and D cannot be cumulated with a petitory action* against M. Mayor vs. Armant, 14 A. 181; Theurer vs. Schmidt, 10 A. 293. Third — A petitory action is not a summary case, and cannot be fixed and tried as such. Fourth — Plaintiff, in petitory action, can only succeed on the strength, of his* own title and» not by the weakness of that of his adversary. C. P. 44. DeArmas vs. New Orleans, 5 L. 183; Bailey vs. Percy, 44 L. 14; Landreauxvs. Foley, 13 An. 114; Hiestand vs. Forsyth, 12 An. 372; Carraby vs. LeBreton, 2 B. 242 ; Hart vs. Foley, 1 B. 380. Plaintiff has proved no title to any property: (a) Because in the judicial record offered in evidence to prove title, there is no answer,, citation, nor return of same; (b) Because a second fi.fa. could not legally issue while there was a first writ out partially executed and not returned. (c) Ho proces verbal nor deed of sale is in evidence. (d) A person in possession as owner, of a real property, cannot be legally divested by a sale under a writ against another person, without citation or notice to the former. Fifth — There is no evidence in the record of any title whatever in either Marchand or the-Factors’ and Traders’ Ins. Co., and plaintiff’s claim should be rejected. Sixth — If a material document offered in evidence is not in the record, the case should be-remanded. Meyer vs. Dupree, 25 An. 216; Barrow vs. Landry, 12 An. 83; Lyons vs. Andrews, 5 An. 602; Agricultural Bank vs. Alexander, 1 An. 246; Evans vs. Murphy, lfc B. 477; Porter vs. Dugat. 9 M. 121.The opinion of the Court was delivered by
Poché, J.Plaintiff brings this suit for the purpose of effecting a partition of three lots of ground and improvements, situated on Peters street, in this city, designated as lots Nos. 3, 4 and 6, and owned, as he alleges, in indivisión and in equal shares, by himself, the Factors’ and Traders’ Insurance Company and Alfred Marchand.
He alleges that John A. Morris sets up title to lot No. 6 by virtue of an adjudication made to him by the sheriff, but averring the nullity of that sale, he prays that Morris be decreed to have no title to said lot.
For answer, the Insurance Company and Alfred Marchand recognized plaintiff’s title in indivisión with them, as alleged, and joined in the prayer for partition.
The judgment of the.lower court recognized plaintiff, the Insurance Company and Alfred Marchand as the lawful, joint and undivided owners of the three lots of ground, and ordered a partition of the same, as prayed for, allotting them as follows:
Lot No. 3 to A. Marchand; Lot No. 4 to the Factors’ and Traders? Insurance Company; Lot No. 6 to plaintiff, Neuville Bienvenu, and re-, ferred the parties to a notary public to complete the detail^ of the par^ tition.
*215The judgment also decreed the pretensions of ownership urged bY John A. Morris as unfounded, null and void.
The Insurance Company and Alfred Marchand, being satisfied with that judgment, have not appealed, but John A. Morris, claiming to be-the lawful owner of lot No. 6, has taken the present appeal.
The important facts of this very complicated case are as follows:
Up to April 26th, 1867, the three lots of ground herein sought to be partitioned were owned, in indivisión and in equal shares, by Mrs. DeLassus, Miss Blanque and Louis Lalaurie.
At that date the three joint owners proceeded, by notarial act, to' effect a partition among themselves of the three lots, which were allotted as follows:
Lot No. 3 to Mrs. DeLassus; Lot No. 4 to Miss Blanque; Lot No. & to Louis Lalaurie.
The act of partition contained a recital of the mortgages affecting the lots thus disposed of, in the name of each respective owner, who severally took the engagement to have the mortgages recorded against him cancelled within the shortest possible delay.
From this statement it appeared that the undivided share of Miss Blanque was affected with a mortgage of $4000, dating from the 5th of September, 1865; the share of Mrs. DeLassus, with a mortgage of $1000, dating from the 1st of December, 1863, and another mortgage for $4013, dating from the 18th of September, 1866, and that of Louis Lalaurie, with two mortgages in favor of plaintiff, Bienvenu, one for $1000, dating from March 10,1866, and the other for $2000, dating from the 23d of June, 1866.
In 1875 the mortgage affecting Miss Blanque was foreclosed, under which the Factors’ and Traders’ Insurance Company became the owner of her share of the property in question.
On the 22d of June, 1871, Lalaurie, claiming to own the whole of' lot 6, by effect of the act of partition of April, 1867, mortgaged it for $16,000, in foreclosure of which mortgage, in 1873, said lot No. 6 was-adjudicated to John A. Morris.
In May, 1874, plaintiff, Bienvenu, obtained a judgment against Lalaurie for two thousand dollars, recognizing and enforcing his mortgage-rights under the act of June 23,1866, and, under a fi. fa. issued under his judgment, the share of Lalaurie, in lots 3, 4 and 6, was adjudicated to Mm in June, 1875.
In January, 1873, by private sale, Alfred Marchand purchased lot 3¡ from Mrs. DeLassus.
Thus stood the property when this partition suit was instituted.
.In his answer, John A. Morris complains that this action is a peti*216lory action, and that plaintiff should be held to comply with the rules governing that action.
The answer to this position is that, having purchased property at a sheriff’s sale, under a second mortgage, Morris himself, in vindicating his title in these proceedings, occupies the position of a plaintiff in a petitory action, who must succeed on the strength of his title, and not on the weakness of his adversary’s.
jHe also complains that the Insurance Company and Alfred Marchand have shown no titles to their respective lots.
Their alleged co-owner, Bienvenu, who sues for a partition, is satisfied with their titles.
If Morris can claim any title at all in the premises, as resulting from the foreclosure of the Lalaurie mortgage of June, 1871, he must rest his claim on the legality and binding effect of the act of partition of April, 1867, and in that case he has no concern to investigate or ascertain the ownership of either lot 3 or lot 4.
If the partition of 1867 is null, then Lalaurie did not own lot No. 6, and his mortgage could, at most, affect but one-third of that lot, and, under that state of the case, Morris would have no more authority to look into the ownership of lots Nos. 3 and 4.
He finally urges the want of title of plaintiff himself, by reason of the nullity of his judgment against Lalaurie, and .by further reason of his having proceeded to seize and sell property in the possession of Morris as owner, without process against him.
He urges as nullity of plaintiff’s judgment that there was no answer, citation or return of service. While it is true that the record does not contain the citation or return in the suit, yet it does not appear that there was no citation or return; on the contrary, in ordering a default against Lalaurie, the judge says that the defendant had been duly cited, and in such a case the'rule omnia rite acta, etc., must apply.
Appellant further urges that plaintiff has failed to produce the sheriff’s deed to him. But the record shows that it was offered in evidence by plaintiff’s counsel, and the absence of the document from the transcript, even after the writ of certiorari, cannot be attributed to him. We find in the record the sheriff’s return on the writ of ji.fa., showing his adjudication to plaintiff, and that is sufficient. 29 An. 270. In this connection we must dispose of appellant’s prayer in his brief, asking us to remand the cause, for the reason that several important documents offered in evidence below are now missing. We have already shown that appellant could not be heard to contest the titles of either the Insurance Company or Alfred Marchand to lots 3 and 4; their titles are admitted by plaintiff in suing them for partition, and we can, therefore, treat them as owners without viewing their titles, which appear from the *217record to have been exhibited in the lower court, and are now missing 'in this most extraordinarily mutilated record.
But as the transcript contains sufficient evidence to enable us to adjudicate upon the issues presented in the case, and to do justice between the parties, and the nature of the missing documents being such •as to give no reasonable hope of recovering them, we fail to perceive the necessity or the wisdom of appellant’s suggestion, and we must, therefore, deny his prayer to that effect. .
In answer to a writ of certiorari, calling for these very documents, the clerk answers that, after diligent search, he has been unable to find them; and we think that nothing could be gained by further delaying a decision of the cause. As we have stated above, if Morris has any .rights to this property, he must derive them from the Lalaurie mortgage of June, 1871, which itself depends upon the effect to be given to the extrajudicial partition of 1867; and upon the rights which Lalaurie may have acquired under that partition to mortgage, dispose of, or otherwise alienate the whole of lot No. 6, of which he previously owned but one undivided third. A proper solution of this problem, upon which the judgment of the lower court is painfully silent, will at once dispel all the difficulties of the case.
Our jurisprudence is so well settled on the following points,-that we shall deal with these propositions as axioms under our laws.
1st. The mortgageor can perform no act which impairs the obligation of his contract.
2d. That the holder of a mortgage cannot be affected by any subsequent alienation or transfer of the property mortgaged to secure his debt, and if his mortgage contains the pact de non alienando, he can enforce his mortgage against the mortgageor without reference tó the vendee of the latter, who has acquired no greater rights than the mortgageor and cannot set up defenses which the latter could not. 2 N. S. 33; 4 An. 324; 13 An. 241; 27 An. 207; 32 An. 808,. and numerous other authorities therein quoted.
3d. That an act of partition among co-owners of undivided property imports acts of alienation.
By reference to the extrajudicial partition which Miss Blanque, Mrs. DeLassus and Lalaurie attempted to operate in the act of April, 1867, it is shown that the undivided shares of all the owners were affected heavily with mortgages of anterior date.
In allotting to Mrs. DeLassus lot No. 3, it could not be transferred free of the mortgages affecting it in the name of Miss Blanque or of Lalaurie, the same holds of each other lot.
It follows, therefore, that the transfer of lot 6 to Lalaurie did not effect the rights of the creditors of Mrs. DeLassus and Miss Blanque.
*218For the same reason, no effect could follow the transfer of lot 4 to Miss Blanque, as to the creditors of Mrs. DeLassus and Lalaurie, and the same consequence attached to the transfer of lot No. 3 as to the creditors of Lalaurie and Miss Blanque.
It follows, therefore, that quoad these various mortgage creditors, any mortgage right granted by Lalaurie, in the act of June, 1871, was subordinate or second to the rights of s.aid mortgage creditors on said* lot, and, therefore, to all intents and purposes, in so far as it could' affect these mortgage creditors, the extrajudicial partition was inoperative, and by the mortgage of Lalaurie of June, 1871, and under the-sale and adjudication made thereunder, John A. Morris acquired no rights or title to lot No. 6, which could, in the least, affect or impair-the mortgage rights acquired by the pre-existing creditors of all three of the joint and undivided owners.
Hence it follows that in 1875 the seizure of Miss Blanqúe’s undivided share in the three lots by the Factors’ and Traders’ Insurance Company embraced one-third of lot 6, which passed under the sheriff’s adjudication to the Insurance Company, thus destroying at the same time Morris’ right of mortgage under the act of 1871, and his title under the adjudication of 1873 to that third of lot 6.
The same result followed as to lots 3 and 4 by the seizure of Bienvenu under his judgment recognizing his $2000 mortgage. No seizure was made of the rights of Mrs. DeLassus, but under these two seizures-such rights of ownership of lot 3, as she had acquired under the extrajudicial partition, were destroyed, as being secondary to the mortgage rights'of the creditors of Lalaurie and Miss Blanque. If the consideration for which she had transferred her interest or share in lot 4 to Miss Blanque, and in lot 6 to Lalaurie, thus failed, it follows that the transfer was annulled, and she was, by operation of law, restored to her-original position as owner of one undivided third of lots 3, 4 and 6; and' we hold that this was the interest which passed to Alfred Marchand by-the act of January 28,1873.
But appellant contends that Bienvenu having taken a judgment against Lalaurie, and having issued a fi.fa. under his judgment, could not, in law, proceed against appellant’s property without process-against him.
It is not disputed that by proceeding via executiva the holder of a. mortgage containing the pact de non alienando can ignore any subsequent alienation of his mortgageor, and follow the property in any-hands without notice to the subsequent vendee or possessor.
And it therefore appears that we are called upon to recognize a-difference as to the mortgage rights of the plaintiff between the two-modes of proceeding. But such a difference does not exist either in *219logic, reason or law, and we cannot sanction the doctrine. The holder-of a mortgage importing a confession of judgment is authorized by law-to proceed by executory process against his debtor’s property, and we-cannot see how any of his mortgage rights can be restricted by a judgment of a competent court condemning his debtor personally to pay him the amount of the debt, and recognizing his mortgage rights. We-understand, on the contrary, that by such a judgment the rights of the-mortgagee are enlarged, instead of being curtailed or abridged.
Under his mortgage the creditor is confined in his seizure to the-property mortgaged in his favor. But if his claim has ripened into a. judgment, he can seize, besides the mortgaged property, if it be not sufficient to satisfy his demand, any other property belonging to his-debtor.
We are at a loss, therefore, to perceive any strength in the position that a creditor, proceeding via ordinaria, is debarred from following the-property of his mortgageor in the hands of any vendee, and without, process against such vendee.
It follows, therefore, that the Bienvenu seizure and purchase had’ ■ for effect to destroy the title of Morris to the third of lot No. 6, and that the property was owned, as alleged, in indivisión and in equal shares, by plaintiff, Alfred Marchand, and the Factors’ and Traders’ Insurance Company, and that the judgment of the lower court is correct.
It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed at appellant’s cosrs.
Justice Levy takes no part in this decision.