Crear v. Sowles

The judgment of the .court was pronounced by Rost, J. On the 11th of April, 1845, the plaintiff purchased by notarial act from Michael Glassgow, a house and lot situated in .this city. The sale was not registered in the office of the register of conveyances till the 5th of July of that year. On the 2d of July, three days before .the registry, the defendant, 'being a creditor of Glassgow, caused the house and lot to he attached.as his property, and, after obtaining judgment against'him, had them advertised ,to be sold. The plaintiff enjoined the sale, alleging the foregoing .facts, and farther that his act of sale was not registered before, through the neglect of the notary, who had promised to attend to the .registry, .and had .rec.eiyed the .fees .to be paid to the register. 'The defendant topic a rule upon .the plaintiff to show ¡cause .why the injunction shouldjiot be .djssplved, on the following grounds: 1. The petition sets forth no good and sufficient cause why the writ should have issued. 2. The facts disclosed by the petition clearly show that, the defendant’s jien by attachment is prior in point of tipie, and has preference to .his pretended deed of conveyance. The .court, aftex.a hearing, dissolved the injunction with ten per cent interest on.the amount enjoined, and fifty dollars as damages. The plaintiff moved for a new trial, and supported his motion ’by an affidavit, alleging new matters. But the court adhered to its decision, and judgment was rendered accordingly, that the injunction be dissolved, and that the plaintiff and his surety pay, in solijo, the interest and damages. The plaintiff and his surer ty have appealed,. The appellee exclusively re.lies.upon the provision,of the registry act of 1827, that acts of transfer of immovables ¿oí registered agreeably to law, whether they are passed before a notary public or otherwise, shall have no effect againstthird persons, but from the day of their .being registered. For the appellants, it is contended that., in the case of Hagan v. Williams et al., which involved the .question at issue, the former Supreme Court intimated that a case might be made out, in which a vende.e, situated .as the plaintiff now is, would be entitled to relief, and that,this is such a,case. 2 La. 122. We .are unable to come to that conclusion. In this case, as in .that, the purchaser has failed to account satisfactorily for the delay in making the registry. The act of 1838, requiring .the notary to make it, ,d.id .no.t dispense him from seeing that .it was made. It probably gives him .a recourse against the notary, but it does not affe.ct the rights of an attaching .creditor. Registry jaws ought not to be so interpreted, as to enable third persons to commit frauds upon bond fide purchasers. ¡But fraud is not alleged in this case. The fact of knowledge of the transferby the defendantis not even put at issue, and is only mentioned in the affidavit made to obtain a new trial. If it had .be.en, knowledge by itself is nota badge of fraud. The defendant may well have believed, as alleged iij his answer, that the sale was simulated, and, if it was, he was justified in treating it as a nullity. Judgment affirmed.