UNITED STATES SUPREME COURT DECISIONS ON-LINE

A. gave his promissory notes, payable Jan. 1, 1888, and Jan. 1, 1869, and to secure the payment thereof executed a mortgage on certain lands in Louisiana which he had held in community with his wife, then deceased. In proceedings upon an order of seizure and sale, the holder of the note purchased the property, and brought in a state court a petitory action therefor and for rents and profits. A. answered setting up the nullity of the proceedings by reason of the noncompliance by the sheriff with the requirements of the statute. B., his son, intervened, setting up such nullity and also claiming one-half of the property as the heir of his deceased mother. A. having died, the plaintiff filed a supplemental petition against B., which contained no prayer for a personal judgment against him, nor did it set up the debt itself as a ground of claim or action. Judgment was rendered in favor of B., upon the ground that he was the owner of an undivided half of the property and that the sale by the sheriff was void because he had never had the property in his possession. The holder of the notes thereupon, Oct. 19, 1878, brought suit in the circuit court of the United States against B., charging him on the notes as universal heir of A., averring that he was liable for the debt, because as such heir he had taken

clubjuris

Page 99 U. S. 169

possession of the estate and property of A. and praying a decree for the debt, with mortgage lien and privilege out of the mortgage property. B. set up the prescription of five years and averred that the order of seizure and sale was a merger of the original debt, and that the executory proceedings were still pending, that he had taken possession of one half of the property as heir of his mother and of the other half as the beneficiary heir of his father, but denied that such possession made him liable for the debt. He furthermore set up the said judgment as a bar.

Held:

1. That the order of seizure and sale did not merge the debt, but that it was a judicial demand, continuing in operation until rendered effective by a valid sale of the property, and that the plea of prescription could not, therefore, be sustained.

2. That the pendency of a suit in a State court does not abate a suit upon the same cause of action in a court of the United States.

3. That the said judgment is not a bar to this suit.

4. That under articles 371 and 977 of the Civil Code of Louisiana, if a husband after the death of his wife mortgages community property for his debt and afterwards dies while their son and heir is still a minor, but after he has been emancipated, the latter does not render himself liable for the debt as universal heir of his father by simply taking possession of the property and receiving to his own use the rents and profits thereof.

5. That the complainant is entitled to a decree for the sale of one undivided half of the mortgaged property to pay said notes and interest.

The facts are stated in the opinion of the Court.