Croghan v. Conrad

10 Mart. 9

Opinion

Martin, J.

delivered the opinion of the court. The authority of Pothier must have the same weight, whatever may be the volume of his works, from which it is quoted.

It is true the Civil Code requires the special mortgagee to seize the property specially mortgaged, before he resorts to any other.

But when a creditor has its debt evidenced by a note of hand, and to the principal obligation resulting therefrom, adds the accessory one of a special mortgage, he may, if he see fit, have an order of seizure, which must be directed against the property specially mortgaged.

Yet nothing prevents his forbearing to resort to his mortgage, and institute his action upon the note. He may, says Febrero and the author of the Curia Phillipica, after having done so, abandon his suit, and put his mortgage in force, and vice versa.

Whether, after having had judgment on the note, he may or not levy it on any property of the defendant, or must first resort to that especially mortgaged, is a question which we will examine when complaint will be made that it was erroneously determined in another court. It does not appear to us that there is any necessity of granting a rehearing.