Succession of Loeper

Citations

• 105 La. 772

Syllabus

<p>Syllabus.</p> <p>1. A creditor holding under an act importing confession of judgment a special mortgage with the clause de non alienando has the right to enforce his mortgage by executory process, though the debtor be dead and his succession be under administration. The creditor has the right to have an order which the administratrix has obtained for a probate sale of the property mortgaged, set aside, though it had been granted prior in date to an order of seizure and sale which he, himself, had obtained, unless he has lost that right by laches or has estopped himself by his acts: mere priority of dates of the orders is not determinative which of the two shall prevail, but the special facts of each case control the situation.</p> <p>2. The mortgage creditor is not estopped from enforcing his mortgage by executory process by having consented to a probate sale and bidding at an offering of the property at such sale, when his consent was given upon conditions which the administratrix had violated, and no sale had been made under the order consented to.</p>