Nicolet's v. Moreau

13 La. 313

• Court: Supreme Court of Louisiana
• Decided: April 15, 1839
• Status: Published

Opinion

Martin, J.,

delivered the opinion of the court.

This is an hypothecary action, on a note of the defendant, given to the plaintiff’s testator, for the price of a lot of ground.

The lot of ground was seized and sold, and adjudicated to one A. C. Tremoulet, who, in answer to a rule to show cause why he should not comply with the terms and conditions of the sale, urged, that he has discovered since the adjudication, that the property sold was not that of the defendant, against whom the order of seizure and sale had issued, but that of G. T. Weisse, to whom the defendant had previously sold it.

Where the act of sale contains the clause de non alienando, the vendor is relieved from the necessity of making the third P0fc'SS01' aPar-tory proceedings mortgage"8 a-

The rule was made absolute, and Tremoulet appealed.

It does not appear to us that the judge a quo erred. Moreau, the mortgagor, bound himself not to alienate or mortgage the premises to the prejudice of his vendor and mortgagee. In the cases of Nathan et al. vs. Lee, 2 Martin, N. S. 32, and Donaldson vs. Maurin, 1 Louisiana Reports, 29, this court held, that the clause de non alienando, relieves the mortgage creditor, when he resorts to his hypothecary action, from the obligation or necessity of pursuing all the steps required by this action in ordinary cases, principally to make the vendee of the mortgagor, or person in possession, a party to the executory proceedings in the order of seizure and sale.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court be affirmed, with costs.