Schneidau v. New Orleans Land Co.

Statement of the Case. MONROE, J. Plaintiff sues to recover a tract of land described as fronting on Bayou St. John, in this (Orleans) parish, and run — 268 — ning back to the property formerly belonging— “to the New Orleans Oanal & Banking Company, measuring 3 arpents front on Bayou St. John by a depth of 45 arpents and 41 feet on the line of the property, now or formerly belonging to Mr. Gordon, and 45 arpents and 162 feet on the line separating it from the property lately belonging to Mr. McDonough; the whole as per a plan drawn by C. A. De Armas, on Eeb. 22, 1850, and deposited in the office of T. O. Stark, late notary.” The chain of title set up in the petition is as follows: (1) June 16, 1905, by act before C. Sehneidau, notary, plaintiff purchased from Mary S. Texier, wife of L. G. Cronan, Anna A. Texier, wife of Jas. T. O’Dowd, Charlotte A. and Blanche D. Texier. (2) October 5, 1893, judgment in Succession of Mary Ann Cronan, widow of A. Texier, recognizing plaintiff’s vendors as sole heirs of the decedent, and putting them in possession of her estate. ■ (3) February 2, 1883, by act before A. Hero, Jr., notary, Mary Ann Cronan, wife of A. M. M. Texier, purchased from William S. Benedict. 'Defendant, for answer, sets up title as follows: (1) June 18, 1895, by act before T. Buisson, notary, defendant acquired said property in exchange for other property conveyed to the New Orleans & Western Railroad Company. (2) June 18, 1895, by act before T. Buisson, notary, the New Orleans & Western Railroad Company purchased from John Spiansel. (3) June 18, 1895, by act before T. Buisson, notary, John Spansel purchased from William S. and Percy Benedict, and plaintiff’s vendors intervened and joined in the conveyance. (4) It is alleged that Percy S. Benedict had acquired a title at a tax sale, under Act No. 82 of 1884, and an act before Rabouin, notary, March 19, 1894. It is also alleged that the rights of the New Orleans & Western Railroad Company were acquired by the New Orleans Terminal Company, the name of which was- changed from St. Louis & San Francisco Railroad Company; and defendant called the terminal company in warranty, and that company filed an exception of no cause of action. The evidence shows that the whole tract, as described in plaintiff’s petition and in the sale from W. S. Benedict, the common author under whom both litigants claim title, embraces 69 squares and parts of squares; “that a certain tract of land in the Second district of the city of New Orleans, in the square bounded by St. Philip, St. Louis and Brook streets and Harney avenue, designated as square No. 9, * * * was assessed for the years 1872, 1873, 1874, 1875, 1876, 1877, and 1878 in the name of Dennis Cronan;” that the tract so described includes but 9 of the 69 subdivisions into which the entire tract here claimed is divided; that said 9 subdivisions were adjudicated, as assessed, by Rabouin, Jr., acting for Charles Cavanac, tax collector, for $1, in August, 1886, to P. S. Carrington, who, in December, 1893, for $5, transferred the interest so acquired by him to Percy S. Benedict; that nearly seven years later, to wit, in 1894, another tax collector, Henry Guillotte, executed a deed to Percy Benedict, purporting to convey the entire tract (of 69 squares and parts of squares) as having been so assessed and adjudicated. Percy S. Benedict is not shown or alleged to have had any other interest in the property in dispute than such as he may have acquired in the manner thus described. The act of sale from William S. Benedict to Mrs. Mary Ann Cronan of February 2, .1883, is in evidence and shows a sale of the entire tract, as described in the petition, together with other property. There is also in evidence a certificate from the register of conveyances, of date June 16, 1905, showing that said tract, as described in the petition. — 270 — had not been alienated by said Mrs. ■ Mary' Ann Cronan, wife, etc.— "except (by) judgment of C. D. C., rendered in matter of Succession of Mrs. Mary Ann Cronan, widow of Alfred Texier, No. 40,261, docket of said court, putting Mary Sedonia Texier, wife of Lawrence G. Cronan, Charlotte Antoinette Texier, Blanche Denise Texier, and Ann Agnes Texier, wife of James T. O’Dowd, in possession of her estate, October 5, 1893. C. O. B. 150/747. Also judgment in Succession of Alfred Texier, No. 40,462, docket C. D. C., putting above named in possession October 25, 1893, C. O. B. 149/776.” There is in evidence an act before Buisson, notary, of date June 18, 1895, purporting to evidence a sale by William S. and Percy S. Benedict to John Spansel of the entire tract described in the petition, in which act Mrs. Mary Sedonia Texier, wife of Lawrence G. Cronan, Bliss Charlotte Antoinette Texier, Bliss Blanche Denise Texier, and Mrs. Anne Alice Texier, wife of James T. O’Dowd, and her husband to authorize her, intervened and declared that they renounced in favor of the vendee all interest which they might have in the property, and joined the vendor, “if need be,” in the sale. The only registry of the transaction thus mentioned, which was made in the books of the conveyance office, reads as follows: “William S. Benedict and Percy S. Benedict sold unto John Spansel a certain lot of ground or tract of land, with all the rights, etc., fronting on the Bayou St. John, in this parish, and running back to the property of the New Orleans Canal & Banking Company, measuring 3 arpents front on said Bayou St. John by a depth of 45 arpents, and 41 arpents on the line separating it from property belonging to Mr. Gordon, and 45 arpents and 162 feet on the other side line, separating it from the property lately belonging to Blr. McDonough, the whole, as per plan drawn by C. A. De Armas, on February 22, 1850. Acquired January 3, 1871, C. O. B. 365; also acq at tax sale, March 19, 1894;. C. O. B. 153, fol. 252. This sale is made for $3000, cash. Registered June 19, 1895.” There was no registry of any alienation by the heirs of Mrs. Mary Ann Cronan, widow of A. Texier. It is shown that, upon the same day that he thus acquired, Spansel conveyed to the New Orleans & Western Railroad Company the property as thus acquired and described, and that on the same day, and by the same description, the railroad company conveyed said property to the defendant herein'; there being no mention of the names of the heirs of Mrs. Texier, as prior owners of the property, in either of the acts of conveyance last mentioned, and no entry upon the conveyance records, in connection therewith, showing that they had alienated their interest in said property. To the contrary, on June 11, 1911, nearly six years later, and nearly that long after the plaintiff herein had bought said interest and had instituted this suit, the register of conveyances issued his certificate to the effect that, according to the indexes of his office, it did not appear that said property, acquired by said heirs under judgment in the Succession of Mrs. Mary Ann Cronan, widow, etc., had ever been alienated by them. Upon the case thus presented, there was judgment in the district court in favor of defendant, from which plaintiff has appealed. Opinion. [1] It is conceded that plaintiff is not entitled to recover that portion of the land here claimed, which was assessed, advertised, and adjudicated for taxes; and it is too plain to admit of discussion that, in so far as the tax collector, seven years after such adjudication, assumed as by virtue thereof, and of previous assessment and advertisement, to make title to property which had never been either assessed, advertised, or adjudicated, his act bore no resemblance to a tax deed, and was utterly void of effect. Guillory v. Elms, 126 La. 560, 52 South. 767. [2] With respect to the remaining 60 of the 69 subdivisions constituting the whole tract in controversy, it is shown that they belonged (at the date of the sale by the Blessrs. Benedict to Spansel) to the heirs of Mrs. Mary Ann Cronan (widow Texier), and — 272 — that they, intervening in that sale, conveyed their interest to the vendee; but it is beyond dispute that no recital or other evidence of such intervention or conveyance was ever recorded in the books of the register of conveyances, and equally beyond dispute that plaintiff thereafter bought said interest from the owners of record. The sole question, then, is whether he is affected by the unregistered title set up by defendant. That question was the subject of investigation by this court in a recent case, in which it was held (quoting from the syllabus) that: “The law which declares that all contracts affecting immovable property, which shall not be recorded in the parish where the property is situated, shall be utterly null and void, except between the parties thereto (Laws of 1855, p. 335, No. 274) is clear and unambiguous. It was intended to settle, in this state, the question whether knowledge, possessed by a third person, of a contract, affecting immovable property, shall be considered, so far as such person is concerned, equivalent to the registry of the contract; and it settled that question in the negative. Fraud cuts down everything. * * * It cannot, however, be said that a third person perpetrates a fraud merely by treating as void, as to himself, a contract which the law, in terms, declares shall be utterly null and void, except between the parties thereto.” McDuffie v. Walker, 125 La. 152, 51 South. 100. The conclusions thus stated were based upon statutory enactments, dating back to 1S10, as construed by many decisions of this court, to wit: “According to the provisions of the act of the 25th of March, 1810 (3 Martin’s Dig. p. 140, § 7), no notarial act concerning immovable property has effect against a third person until the same shall have been recorded in the office of the judge of the parish where such immovable property is situated. * * * This law has already received an interpretation by a judgment of this court in the case of Carraby v. Desmarre et al. [7 Mart. (N. S.) 661]. In relation to third persons, the act of sale, not recorded, is considered as void.” Gravier et al. v. Baron et al., 4 La. 241. See, also, Carraby v. Desmarre, 7 Mart. (N. S.) 661: Williams v. Hagan, 2 La. 122; Mary v. Lampre, 6 Rob. 314; Crear v. Sowles, 2 La. Ann. 597; Tulane v. Levinson, 2 La. Ann. 787. In the case last above cited, after holding that an act of sale must be recorded in the proper office — not the mortgage office —to have effect against third persons, either as transferring title or possession, and that “Notice is not equivalent to registry in relation to conveyances of real estate,” and after finding, as a fact, that the attorney of the seizing creditor knew, before making the seizure, that the property, which he caused to be seized, had been sold by the debtor, and that the sale had been recorded, in the mortgage office (instead of the conveyance office), the court said: “As we consider the right of the plaintiffs to have the property sold to satisfy this debt paramount to that of the defendant, under his unrecorded deed, * * * we do not see how that right can be impaired by this knowledge on the part of his attorney.” In Leverich v. Toby, 6 La. Ann. 463, 464, it was said: “Bona fide titles and mortgages, if not recorded in the proper conveyance or mortgage office, have always been postponed to subsequent titles or mortgages duly recorded. How little reason, therefore, is there for pretending a different principle as to secret and unknown titles.” In Poydras v. Laurans, 6 La. Ann. 772, 773, Eustis, O. J., speaking for the court, said: “The decisions under these statutes [referring to certain English statutes] as to what notice will save the holder of an unregistered deed form no part of our jurisprudence, nor has the doctrine ever been recognized by this court that possession, under an act of sale, not recorded, was sufficient evidence of notice to creditors and subsequent purchasers fet defeat the operation of the registry laws. In the case of Tulane v. Levinson, we said: ‘The theory that notice is equivalent to registry, in relation to conveyances of real property, we do not understand to have been adopted in our jurisprudence.’ The subject has been several times under consideration, and the difficulties attending every mode in which laws of that description have been carried into effect in different countries have been examined and weighed. The only cases in which there has been any exception, to the effect of registry of conveyances, have been those of gross fraud on the part of subsequent purchasers. Splane v. Micheltree, 2 La. Ann. 265; McGill v. McGill, 4 La. Ann. 269.” — 274 — In Raiford v. Wood, 14 La. Ann. 116, it was said: “A sheriff’s sale, not recorded in .the office of the recorder of the parish where the property is situated, is utterly null and void, except as between the parties thereto.” In Moore v. Jourdan, 14 La. Ann. 416, the court used this language: “Even if Moore, at the time of his purchase, knew that the land had been sold to McGehee, still this would not benefit the defendant. It cannot be admitted that possession, under an act of sale, not recorded, is sufficient notice to creditors and subsequent purchasers to defeat the operation of the registry laws. Poydras v. Laurans, 6 La. Ann. 772; Tulane v. Levinson, 2 La. Ann. 789.” In Cochrane v. Gibert, 41 La. Ann. 735, 6 South. 731, it was held that an unrecorded lease had no effect with regard to third persons and creditors. In Huntington v. Bordeaux, 42 La. Ann. 346, 7 South. 553, it was said that a sheriff’s adjudication must be recorded, otherwise the defendant in execution may sell the property to a third person, and the latter, not notified, by registry, of the prior sale, gets a good title. In Harrison v. Ottman, 111 La. 739, 35 South. 848, it was said: “The object of registry laws is to make apparent the ownership of property. An owner who neglects to have his property title recorded is exposed to loss, when opposed by a title not tainted with fraud,” etc. Other decisions to the same effect are to be found in the eases of Payne & Co. v. Pavey, 29 La. Ann. 117; State ex rel. Slocomb v. Rogillo, 30 La. Ann. 833; Way v. Levy et al., 41 La. Ann. 447, 6 South. 661; Flower & King v. Pearce & Son, 45 La. Ann. 853, 13 South. 150; Bank v. Ice Co., 105 La. 133, 29 South. 379 ; Baker v. Atkins & Wideman, 107 La. 490, 32 South. 69; Patterson v. Landru, 112 La. 1073, 36 South. 857; Williams v. White Castle Lumber Co., 114 La. 451, 38 South. 414; Louisville & Nashville Railroad Co. v. N. O. Terminal Co., 120 La. 978, 45 South. 962; Washington v. Filer, 127 La. 862, 54 South. 128; Riggs v. Eicholz, 127 La. 745, 53 South. 977. In John T. Moore Planting Co. v. Morgans, etc., Co., 126 La. 840, 53 South. 22, it was said: “An unrecorded deed to real estate is an utter nullity in so far as the rights of third persons are concerned. It stands as if not written.” [3, 4] It may serve some useful purpose to say in this connection: - (1) That the concuding paragraph of article 2266 of the Civil Code, reading: “The recording shall have effect from the time when the act is deposited in the proper office and indorsed by the proper officer”— finds its application outside of, but not within, the parish of Orleans; the reason being that the originals of all contracts affecting real estate, situated in parishes other than the parish of Orleans, are required to be “deposited” in the offices of the parish recorders, and become parts of the archives of those offices. C. C. arts. 2251, 2252, 2254; Act No. 48 of 1890. On the other hand, notaries, before whom such acts are executed, affecting real property within the parish of Orleans, are required to cause certified abstracts of their contents to be “registered,” but they are made the custodians of the original instruments. In the event of death, withdrawal, etc., of the notary, the keeper of notarial records becomes the custodian of his records, and they are never “deposited” in the office, and never become part of the archives, of the register of conveyances or recorder of mortgages. C. C. art. 2255; Act No. 50 of 1882; R. S. §§ 2499, 2543, 2544; Way v. Levy et al., 41 La. Ann. 447, 6 South. 661, supra. (2) That there is a difference between the law regulating the recording of mortgages and that by which the registry of conveyances is governed, for, whilst (out of the parish of Orleans, as we have seen) a conveyance may — 276 — be held to be recorded “from tbe time when tbe act is deposited in the proper office and indorsed by the proper officer,” the law provides that a mortgage (whether in the parish of Orleans or elsewhere) shall take effect, not from the date of the deposit and indorsement of the act, but from the moment it is actually inscribed in the book of mortgages. C. C. arts. 3329, 3342, 3345, 3348; Payne & Co. v. Pavey, 29 La. Ann. 117; State ex rel. Slocomb v. Rogillo, 30 La. Ann. 833; Way v. Levy et al., 41 La. Ann. 447, 6 South. 661. Reverting to the facts disclosed by the record in this case, the answer of the defendant does not allege that plaintiff ever knew that his vendors had parted with their interest in the property in question before they sold it to him; and there is no suggestion of fraud, on the part of plaintiff, either in defendant’s pleadings or in the brief filed on its behalf. Its learned counsel refers us to the case of Hollingsworth v. Wilson, 32 La. Ann. 1012, the syllabus of which (sustained by the text) reads, in part, as follows: “A. sold an immovable to B. in 1845, and sold th'e same property to C. in 1850. The sale to B. was not recorded; that to C. was recorded in 1850. But B. sold to D. in 1848, and the sale was recorded in 184S. B eld, that D.’s title must prevail against that of 0.” The decision in the case thus cited was placed upon the sole ground that the question had been settled by five decisions, “the last of which was rendered in 1852.” In those decisions (beginning with that in Stockton v. Briscoe, 1 La. Ann. 249, and ending with that in Buchanan v. Morgan, 7 La. Ann. 454), Mr. Justice Slidell dissented throughout, and, in our opinion, the view expressed by him was the correct one, and is alone reconcilable with the preceding and subsequent jurisprudence. In Mary v. Lampre, 6 Rob. 314, for instance, it appeared that Kokernot, being the owner of real estate, by recorded title, sold it to Bertrand, whose title was not ■ recorded; that Bertrand sold to Morgan, and Morgan to Mary, by deeds which were recorded; that the property was. seized, under an execution against Kokernot, and Mary enjoined the seizure, alleging that, although the deed from Kokernot to Bertrand had not been recorded, the subsequent conveyances had been recorded, and that she was the owner. It was held by the court (quoting from the syllabus) that: “Under the fifth section of the act of the 20th of March, 1827 (Laws 1827, p. 138), creating the office of register of conveyances for New Orleans, a sale of real estate can have no effect against third persons but from the date of its registry; and where a judgment against a vendor was recorded by the register of mortgages, before the registry, in the conveyance office of the sale from him, the sale will be without effect as to the judgment creditor, and this though a sale of the property from the first vendee to the plaintiff was registered before the judgment.” Upon application for rehearing, the court said: “In this case Lampré obtained his judgment against Louis Kokernot & Co., had it recorded, and execution issued and levied on the premises in question, previous to the registry of the sale from Louis Kokernot to Bertrand. His lien on the property had attached and become vested, and we cannot deprive him of it, however severely it may operate on the plaintiff. The case of Williams v. Hagan, etc., 2 La. 122, is nearly similar to this, and the principle is sustained by that of Syndic of McManus v. Jewett, 6 La. 540. The counsel for the plaintiff contends that his client should not suffer for the neglect of the notary to have the act, passed before him, recorded. Upon this point, all we can say is that if it were the duty of the notary to have the act recorded and he failed to do so, and damage had resulted, the parties must look to him. Lampré cannot be deprived of his right acquired, in consequence of Ms neglect, and be made responsible. He has done what the law authorized him to do, and he is entitled to the benefit of it.” In the case of Baker v. Atkins & Wideman, 107 La. 491, 32 South. 69, it was held (quoting the syllabus) that: “Where A. is the owner of real estate by undisputed title, and sells the same to B., who fails to record his title, the judgment creditors of A. can acquire judicial mortgages on such — 278 — property by recording their judgments after the date of such sale and before its registry. And in such case the judicial mortgages recorded against A., prior to the registry of the sale, prime all such mortgages, recorded against B., whether the latter be recorded before or after the former.” In Harrison v. Ottman, 111 La. 739, 35 South. 848, citing the case thus referred to, the court said: “With reference to deeds and their registry, article 2266, Civ. Code, and others in pari materia, were carefully considered by this court. While the court was not unanimous, the majority laid down the rule that unrecorded deeds are absolutely without effect, save inter partes. It is a rule of property to which we must adhere.” In Williams v. White Castle Lumber & Shingle Co., 114 La. 448, 38 South. 414, plaintiff claimed title, through mesne conveyance, from a levee district; defendant claimed from the same author under a deed later in date but earlier in registry; and it was said by this court; “When the conveyance last mentioned was made and accepted, there was nothing upon the records of the parish * * * to indicate that the vendor had previously parted with the land, and it follows that the prior, unregistered conveyance, relied on by the plaintiff, can be accorded no effect as against the vendee.” In McDuffie v. Walker, supra, the cases of Stockton v. Briscoe and Buchanan v. Morgan relied on (in part) as the basis of the decision in Hollingsworth v. Wilson, upon which defendant now relies, were mentioned as cases in which the jurisprudence had fluctuated, and the opinion proceeds: “And there were still other eases which served to derogate from the force of the statutes as interpreted in the cases first cited, so that the jurisprudence of the state can hardly be said to have been in a satisfactory condition. In 1855, therefore, the General Assembly took the matter up,” etc. Then follows a review of 'the legislation of 1855, including Act No. 274, which has been incorporated as articles 2265, 2266, in the Civil Code, and of the jurisprudence predicated thereon, with the result as stated in the beginning of this opinion. In John T. Moore Planting Co. v. Morgan’s La. & Tex. R. & S. S. Co., 126 La. 866, 53 South. 31, it was said: “This Hollingsworth v. Wilson decision is founded upon decisions which wore made prior to the enactment of article 2266, supra, and must be considered merely as the result of inadvertence. All doubt that may have existed since the enactment of Act No. 274 of 1855, now article 2266, supra, as to the utter nullity, for any purpose, of an unrecorded title to the real estate, in so far as the rights of third persons are concerned, must be considered as having been set at rest by the decision of this court in the case of McDuffie v. Walker, * * * 125 La. 152, 51 South. 100.” Other cases in which the interpretation placed upon the law in McDuffie v. Walker has been approved are Riggs v. Eicholz, 127 La. 750, 53 South. 977; Sorrel v. Hardy, 127 La. 847, 54 South. 122. That interpretation, we may say in conclusion, is based upon the belief that the General Assembly, in declaring that all contracts affecting immovable property, which are not recorded, “shall be utterly null and void, except between the parties thereto,” has, from considerations of public policy, provided a method intended to be simple, sure, and inflexible, whereby those who desire to invest their money in real estate may be able to find, upon the public records, the evidence, and all the evidence, needed to establish or defend the title thereto, and upon the further belief that the law which has been enacted to that end would be improperly interpreted and its purpose defeated, if it were held that an unrecorded vendee could convey to another a title good against a purchaser from the owner of record and good against the world. It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of the plaintiff, Oscar A. Schneidau, and against the de — 280 — fendant, the New Orleans Land Company, decreeing said plaintiff to be the owner, entitled to possession, of the tract of land described in the petition, save and except so much thereof as is included within the following boundaries, to wit, St. Philip, St. Louis, and Brook streets and Harney avenue. It is further decreed that defendant pay all costs. His honor, the CHIEF JUSTICE, dissents and hands down reasons. See 61 South. 230.