Opinion of the Court.

chaser to pay the pro rata share of the debt represented by the notes that were not the subject of the foreclosure suit.

But the other proposition advanced by the complainant, that the right of action is not prescribable until at least ten years from the date of sale, is not supported by any of these authorities, or by any that have been brought to our attention, or that we have been able to find.

In Smith v. Johnson, 35 La. Ann. 943, the court, held, as stated in the syllabus of the case, that "the hypothecary action against the third possessor is not barred by the prescription of ten years, when the principal obligation has been kept alive, and the mortgage securing it has been properly inscribed and reinscribed."

In Gentes v. Blasco, 20 La. Ann. 403, 405, the court said: "We consider the hypothecary action as accorded and defined by arts. 61, 62 and 63 of the Code of Practice, to be an original action. It is declared to be a real action, and that it follows the property in whatever hand it may be found. What is said in Kemp v. The Heirs of Cornelius, 14 La. Ann. 301, in regard to the ten years' prescription being applicable, whenever it becomes necessary to institute a separate and distinct action from the one in which the judgment was rendered, seems not to apply to the hypothecary action. In that case we have already seen the action was personal. We do not find in our Code any period expressly fixed for the prescription of the hypothecary action. And the reason seems to be that its duration is contingent upon the existence of the right from which it springs."

Applying this principle to the case at bar, it is to be observed that the right from which the hypothecary action springs was the right of the complainant to his pro rata share of the net proceeds of the sale of the mortgaged property; or, in other words, the hypothecary action is based upon the obligation on the part of the purchasers to pay to him that amount

an obligation which, as before stated, follows the land into the hands of third persons. We have also seen that, according to the rule announced in Johnson v. Duncan, as to the purchaser at the sale, no inscription of the obligation was neces

Opinion of the Court.

sary. But as to third persons, such is not the case. Upon this point the Louisiana constitution of 1868 and the constitution of 1879 are positive and peremptory. Article 123 of the constitution of 1868 is as follows: "The general assembly shall provide for the protection of the rights of married women to their dotal and paraphernal property, and for the registration of the same; but no mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated. The tacit mortgages and privileges now existing in this State shall cease to have effect against third persons after the first day of January, eighteen hundred and seventy, unless duly recorded. The general assembly shall provide by law for the registration of all mortgages and privileges."

Article 176 of the constitution of 1879 provides: "No mortgage or privilege on immovable property shall affect third persons unless recorded or registered in the parish where the property is situated, in the manner and within the time as is now or may be prescribed by law, except privileges for expenses of last illness, privileges for taxes, State, parish, or municipal; Provided, Such privilege shall lapse in three years."

The obligation in such case partakes of the nature of a judicial mortgage; and to be effective as to third persons it was necessary that it be inscribed with the recorder of mortgages. The judgment of the court from which the aforesaid obligation arose did not give a lien until so registered. Hanna v. Creditors, 12 Martin, 32; Adle v. Anty, 5 La. Ann. 631; Ford v. Tilden, 7 La. Ann. 533; Arts. 3322 and 3342, Civil Code; Art. 123, Constitution of 1868; Art. 176, Constitution of 1879.

Third persons are understood to be "all persons who are not parties to the act or the judgment on which the mortgage is founded." Art. 3343, Civil Code. And in that class must be placed the defendant Lovell, considered in his individual capacity, as possessor of the property; for his character as executor and his obligation as such did not exist until after he became such purchaser. As to him, the obligation aforesaid was of no effect without being registered, as required by the laws of Louisiana; and no action would lie to enforce it.

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This principle was applied by the Supreme Court of Louisiana in Delony v. George, 20 La. Ann. 216. That case is well stated in the syllabus, as follows: "A having sold a tract of land to B, retained a mortgage thereon for the unpaid portion of the price, with the pact de non alienando in the act of sale. B subsequently sold the same tract of land to C, without an assumption in the act of sale of the existing mortgage. A lost his mortgage by allowing ten years to elapse without reinscription: Held, that C, the third purchaser, held the property free from the mortgage of A, after the lapse of ten years from its inscription, notwithstanding the pact de non alienando contained in the act of sale from A to B, and that the third purchaser could successfully enjoin the order of seizure and sale taken out by A."

It is to be observed that our discussion of the case hitherto has been upon the theory that the court below was correct in finding that the complainant purchased the two notes in suit and was subrogated to all the rights in and to them enjoyed by the Quitmans. Indeed, the argument of both parties is largely based upon that theory, and the contrary view is presented only incidentally in connection with the issue raised by the cross-bill. In fact, however, it makes no substantial difference in our conclusion on the issues presented by the original bill whether that theory, or, more properly speaking, that finding of fact, be correct or not, as that is the most favorable view of the matter to the complainant that can be taken; and, in any view of the case, his bill cannot be sustained. The decree of the court below in that respect is erroneous and should be reversed.

With respect to the cross-bill, we are of the opinion the decree below was correct, although the grounds upon which the court based its decree are not stated. One of the causes of action alleged in the cross-bill is for damages arising from the alleged wrongful acts of the complainant with respect to removing personal property from the plantation while he had possession of it, and for waste committed by him about the same time. Under the law of Louisiana such acts on the part of the complainant would be considered quasi-offences, and

Opinion of the Court.

would, therefore, be prescribed by one year. Art. 3536, Civil Code.

But, furthermore, as stated by the attorney for appellant, the cross-bill "is for the same cause of action" as was originally brought in Cragin v. Lovell, in which judgment was rendered against Cragin in the court below, but on appeal to this court was reversed and ordered to be arrested because the petition set up no cause of action against Cragin, the complainant herein. 109 U. S. 194. The cause of action in that case was the same as in this, and the parties are the same; and while the plea of res adjudicata may not be strictly applicable, because the judgment in that cause was simply arrested and did not, therefore, adjudicate upon the merits of the case, yet a comparison of the cross-bill here and the petition in that case discloses that they are almost, if not entirely, identical, so far as the substance of both is concerned. And, as we held there that "the petition shows no privity between the plaintiff and Cragin," and "alleges no promise or contract by Cragin to or with the plaintiff," it would seem that the same rule should be applied with reference to this cross-bill, even though it is ostensibly an equity proceeding. Ballance v. Forsyth, 24 How. 183; Life Insurance Co. v. Bangs, 103 U. S. 780; Gould v. Evansville & Crawfordsville Railroad, 91 U. S. 526, 534; Alley v. Nott, 111 U. S. 472, and cases cited.

The decres of the court below sustaining the complainant's bill was erroneous, and to that extent is reversed; and with respect to its dismissal of the cross-bill it was correct, and to that extent is affirmed; and the case is remanded to that court with a direction to dismiss the bill with costs.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 1224. Argued April 8, 9, 1890.- Decided May 19, 1890.

Under the will of a testatrix who resided in New York, Cornell University, a corporation of that State, was made her residuary legatee. It was provided in its charter that it might hold real and personal property to an amount not exceeding $3,000,000 in the aggregate. The Court of Appeals of New York having held that it had no power to take or hold any more real and personal property than $3,000,000 in the aggregate, at the time of the death of the testatrix, and that, under the jurisprudence of New York, her heirs at law and next of kin had a right to avail themselves of that fact, if it existed, in the controversy about the disposition of the residuary estate, this court held that such decision of the Court of Appeals did not involve any federal question and was binding upon this court.

This court concurred with the Court of Appeals, 111 N. Y. 66, in holding that, at the time of the death of the testatrix, the property held by Cornell University exceeded $3,000,000, and, therefore, it could not take her legacy.

A federal question was involved in this case, arising under the act of Congress of July 2, 1862, 12 Stat. 503, c. 130, granting lands to the State of New York to provide a college for the benefit of agriculture and the mechanic arts.

The legislation of New York on the subject, in its acts of May 5, 1863, May 14, 1863, April 27, 1865, April 10, 1866, May 4, 1868, and May 18, 1880. and the contract of the State with Ezra Cornell, of August 4, 1866, selling to him the land scrip received by the State from the United States under the act of Congress, did not violate that act.

MR. JUSTICE BLATCHFORD stated the case as follows:

This is a proceeding which originated in the surrogate's court of the county of Tompkins, in the State of New York. John McGraw, a resident of Ithaca, in that county, died May 4, 1877, leaving as his only child and heir Jennie McGraw, who, on the 14th of July, 1880, at Berlin, Germany, intermarried with Willard Fiske, and died September 30, 1881, at Ithaca, her place of residence, after reaching the age of 41, without issue, leaving her husband surviving her. John