Ells v. Sims

The judgment of the court was pronounced by Slidell, J. The heirs of Presler, defendants in this case, sold a tract of land to Sims Brown, for the supi of 3516,000, for which notes were taken. In the notarial act of sale no mortgage was stipulated, but the plaintiffs claim the legal privilege of the vendor. This act was duly recorded as a sale in the office of the parish judge, in the notarial book of conveyance kept by him ; but the only registry named in the mortgage books then kept, consists in the following .entries. In the index of this mortgage book was the following: uSims Brown to Amelia Presler, mortgage clause, page 158.” In the body of the mortgage bo.ok, at the .corresponding page, was made an .entry in the following words : “ Siftis Brown to Amelia Presler et al., who declared .and said that, for the consideration of 3516,00.0, to theip secured to be paid by the three joint and several promissory notes of John C. Sims and Joseph Brown, th,e former of the said parish and State, and the latter residing in Wilkinson county, State aforesaid, the said three notes payable to the order of the said Amelia Presler and the said children of Simon Presler, deceased ; the first for the sum of five thousand three hundred and thirty-three dollars and thirty-three and one third .cents, of even date herewith, and payable on the first day of August, 1841; the second for the same amount and of the s.arne date, and payable on the first day ,of August, 1842; and the third and last of said notes for the same sum (555,333 ¡33 J), and of .the date aforesaid., payable ,on the first d.ay of .August, 1843; the [253] said notes are made payable at the Merchants Bank, New Orleans, and are by me, the notary, paraphed ne varietur, in order to identify them with this act. “ Recorded, 12 Feb’y., 1841. “ Attest, James Dunlap, “ Parish Judge,” It is shown that a book exclusively for the record of mortgages was first opened in the parish judge’s office, in the year 1837. Sims became the purchaser of Brown’s moiety of the lands, at a probate sale of Brown’s succession, in the year, 1841. In April, 1843, Sims executed in favor of Ells, Manger, MeGloJjin and Sutherland, respectively, his notes at one day’s date, for §724 22, 731 72, §892 21, and §723 39. A statement of one will exhibit the character of the residue. That in favor of Sims is in these words : “§724 22. State of Louisiana. Parish of Concordia. April 18th, 1843. One day after date, I promise to pay to E. Ells, or order, §724 22, being for work done on my land, situate on the Mississippi river, in said parish of Concordia, bounded by lands of E. P. King above and below, and back by lands of the United States, which land is improved by said levée. I hereby acknowledge, agree and consent, that the said has a privilege and mortgage, for the securing the payment of said sum of money. John C. Sims.” Each of the notes was registered in full on the mortgage book in the parish of Concordia, in July, 1843, the parish judge having known and recognized the signature, of the maker. The defendants Presler, subsequently seized the moiety of the land originally purchased by Sims, upon proceedings instituted upon the notes given for the price. On the day of the sale, the plaintiffs’ gave warning of their mortgage rights, of the invalidity of the Presler mortgage, and of their intention to bring suit. Under this notice, the defendants Presler, purchased at the judicial sale, for the sum of §100. We will first consider the objections raised by the plaintiffs to the vendor’s privilege, asserted by the defendants. For the validity of the Presler claim of privilege as against the plaintiffs, .against whom actual notice is not proved, it was necessary that it should be registered in the mortgage book kept by the parish judge. The registry as there made was a mere extract from the act of sale, not designating in any manner the property sold, and from which not even the nature of the property, whether land, slaves, or moveables, could be ascertained. It was clearly insufficient, and is not aided by the faet that the notarial sale was recorded in the book of conveyances. See Civil Code, arts. 3349, 3350, 3351, 3353, 3356, 3238, 3241; and also the case Falconer, 4 Robinson, p. 5. It is in vain to argue from the testimony of the parish judge, who states that, if the plaintiffs had applied to him for a certificate before they contracted with Sims, he would have certified the mortgage or privilege as existing onthe land in favor,of the vendors. The plaintiffs were not bound to obtain a previous certificate ; and although, if they had chosen to contract by notarial act, it would have been the duty of the notary to obtain a certificate, still the law permitted them to contract with Sims by an act under private signature. Civil Code, art- 3331. It is contended by the appellees that the plhintiffs should have obtained a formal act of mortgage, and that the notes above recited do not constitute a contract of mortgage. A conventional mortgage is a contract by which a person binds the whole of his property, or a portion of it only, in favor of another, to secure [254] the execution of some engagement, but without divesting himself of the possession. And such a contract may be made under private signature. Civil Code, arts. 3257, 3331. The formal written acceptance of the mortgagee subscribed to this instrument, was not necessary. The acceptance of the note by the payee was an acceptance of the mortgage which it stipulated, and by the delivery of the note the entire contract became complete between the debtor and the creditor. ' We do not consider it necessary, under article 3331, that it shall appear affinnatively upon the registry, or bo proved aliunde, that the creditor himself presented the private writing to the register. It is said that the property is not sufficiently described; that the quantity, range, township and section, should have been stated. The land is described as situate on the Mississippi river, in the parish of Concordia; boundaries are stated, and the expression “ my land,” especially in the absence of any evidence showing the ownership of other land by Sims, is fairly comprehensive of the entire tract. The object of registration is public notice, with reasonable certainty. A distinction may be fairly made between urban and rural estates, and greater minuteness and accuracy of detail might properly be required in the former than in the latter case. The question is whether, under the circumstances, any one contracting with Sims, or in any wise trusting him, or interested as a creditor, would have been misled or kept in the dark by the omission to state the township, range and section, and the quantity of acres in Sims’ tract. We think not; and are of opinion that in this case there has been a fair compliance with the requisition of law, that the mortgage and its registry shall “state precisely the nature and situation” of the property. Upon the whole, we are of opinion that the mortgage of the plaintiffs should be enforced, and that the vendors’ privilege is ineffective against them; nor does this case present the hardship which sometimes results from the inattention of parties and of public officers, as the labor of the plaintiffs has been devoted to the improvement of the defendants’ land. It is therefore decreed that the judgment of the court below, so far as it rejected the rights of mortgage claimed by the plaintiffs, be reversed ; and it is further decreed that the said plaintiffs are, and they are hereby, recognized as creditors, concurrently between themselves, by first mortgage upon the property in the petition described, for the sums following, to wit: the said Edward Ells, for the sum of $630 50; the said Daniel Manger, for the sum of $731 72 ; the said William McGlqffin, for the sum.of $692 21 ; and the said John Sutherland, for the sum of 723 39 ; with interest on said sums respectively from judicial demand, till paid; and that the said property be sold to pay concurrently, and by first privilege, said sums due to said plaintiffs, interest as aforesaid, one half of the costs heretofore incurred in the court below, also the costs of sale in execution of this decree, and the costs of this appeal.