Buchanan v. Morgan

By the court: (Slidell, J., dissenting.) Eustis, C. J. The plaintiff obtained an injunction against the sale of two certain lots, situate in the former Nun’s faubourg, in the parish of Jefferson, which had been seized under an execution against Albert Wintercast. [455] The district court maintained the injunction, decreeing the lots to belong to the plaintiff, and not to be subject to the judgment against Wintercast. The defendant, who is the judgment creditor of Wintercast, has taken this appeal. On the 3d of October, 1843, O. P. Jackson sold the lots to Wintercast, by public act, which was duly recorded. On the 19th of June, 1844, Wintercast reconveyed the lots to his vendor, Jackson, by public act, which was not recorded. On the 14th of December, 1848, Jackson conveyed the lots to Hyde. Hyde conveyed them to Thomas, and Thomas to the plaintiff. These three conveyances from Jackson to Hyde, Hyde to Thomas, and Thomas to the plaintiff, purport to be sales for a valuable consideration, and were by public act duly recorded in the parish of Jefferson. The ground, on which it is contended the lots are subject to the judgment and execution against Wintercast, is, that the act of sale from Wintercast to Jackson, was never recorded as required .by law. The district judge was of opinion, that this defect was cured by the registy of the subsequent acts, and the possession under them; and on the authority of the case of Stockton v. Briscoe, 1 Ann. 249, held the plaintiff’s title to be valid against the creditors of the original owner, Wintercast. The judgment under which it is attempted to affect the property in the hands of the plaintiff, was not rendered until April, 1851; the debt in which it was rendered, only originating in September previous, in the city of New York. By the act from Wintercast to Jackson, in 1844, Wintercast divested himself of possession of the lots in favor of Jackson, who acknowledged himself to be in possession thereof. In 1849, they were assessed in the tax roll as belonging to Hyde, and in the assessment of 1850, as the property of the plaintiff. The law considers the tradition of real property, as accompanying the public act of sale, and every obstacle to the corporal possession interposed by the seller, is held to be a trespass. Code, 2455. The vendors of the plaintiff, had not only the possession resulting from the sales, but stood upon the tax records of the State as owners of the property, and openly assumed the responsibilities and charges of possession and ownership. Under the principles recognized by this court, in the case of Poydras v. Laurans, 6 Ann. 771, and cases there cited, the decision of the district court is clearly right. The judgment of the district court is therefore affirmed, with costs.