Deverges v. His Creditors

Labattve, J. B. Soulé, syndic of the creditors of the said insolvent, filed a tableau of distribution, on the 25th January, 1862. Various oppositions were filed to the said tableau; and our attention-has been called particularly to the following objectionable parts thereof : The movables being insufficient to pay the debts privileged on the movables and immovables, the creditor whose mortgage was the least ancient, was made to contribute first to the loss resulting from theinsuffieiency. The ground of opposition is that the deficiency of movables to pay privileged debts should be charged pro rata on all the mortgage creditors. The said tableau being also silent, as to a mortgage in favor of Madam de St. Homes, to secure the payment of a note in her favor, for $12,988 95, secured by a mortgage, granted on certain property, on the 2d March, 1855; the said Mistress de St. Homes opposed said tableau, alleging, in substance, that she is the holder of said note which is wholly due to her; that the mortgaged property has been sold by the syndic,, who has failed to put her on said tableau as a mortgage creditor and as-being entitled by preference to the proceeds, and that she has never released the said mortgage; and that, if any entry has been made on the-books of the register of mortgages cancelling said mortgage, the same was erroneous and made without her consent. She prayed that the proceeds of the mortgage property be applied to the payment Of said note. The Court sustained the said oppositions; ordered that the deficiency [176] of movables to pay the debts privileged on the movables and immovables be charged pro rata on the mortgage creditors, and that Mrs. de St. Eomes should be also placed on the tableau as a mortgage creditor, to be paid by preference on the proceeds of the property mortgaged to her. The syndic and various creditors took this appeal. The question as to what mortgage creditors should contribute, in case of deficiency of movables, to pay debts privileged on movables and immovables, depends on the interpretation of Arts. 3236 and 3237 of our Civil Code. We are called, then, to review the decision by our predecessors, upon those two very Articles, in the case of August Devron v. His Creditors, 11 A. 482. In that case, a majority of the Court (Judges Spofford and Lea dissenting) decided that the loss resulting from the deficiency of movables to pay debts privileged on movables and immovables, must be borne by the creditors whose mortgage is the least ancient, and so in succession, ascending according to the order of the mortgages. We are of opinion that these Articles have been correctly interpreted in that decision, and, consequently, that the judgment rendered below in this case is erroneous on that question. See the case of Succession of Thomas O’Laughlin, lately decided, and not yet reported. It appears that the mortgage in question, in favor of Widow de St. Eomes, was erased from the records of mortgages, on the 8th July, 1857, and that the mortgage note is still in the possession of Mrs. de St. Eomes, apparently fully due and uncancelled. It is contended that Deverges, .the debtor and mortgagor, came in possession of the mortgage note, went to the Notary before whom the act of mortgage had been passed, and asked the Notary to cancel the mortgage; and that the mortgage was accordingly erased. We have found in the record no satisfactory testimony in support of that assertion. We are referred to the statement or report of Walton, an auditor, wherein we find that said Walton says: “Now Joseph Lisbony, in his statement to the auditors, says that Pierre Deverges came to his office with this note, some time after its maturity, and asked him to cancel the mortgage, that, by virtue of Art. 3346 O. C., he did so, and granted a certificate to that effect; he further states that, through an oversight, he did not erase the name of the drawer. ” This is not legal testimony before us. The opposition to Mrs. de St. Eomes’ mortgage, relies entirely on a copy from the book of the.recorder ©f mortgages, showing an entry on the margin opposite the mortgage, as follows : “ Eteinte et annullée conformément á Particle 3346 du Code Civil, et suivant le certificat de Jos. Lisbony, notaire, en date du 6 Juillet, 1857, et déposé ce jour en ce bureau. Nlle-Orléans, 8 Juillet, 1857.” From this entry, it is contended that the mortgage of Mrs. de St. Eomes was effectually erased and cancelled, and that she has now no right, as mortgagee, to the proceeds of the property so mortgaged to her. We must bear in mind that the mortgage fnote is now unpaid and un [177] cancelled, and in the possession of Mrs.de St. Romes, the payee and mortgagee, and negatives the fact that it has ever been exhibited to the notary according to Art. 3346 C. C.; and if the notary did grant the certificate without the production of the note as paid, that certificate was unauthorized and null, and not binding on the mortgagee, and the erasure of the mortgage thereupon by the Recorder might possibly not affect Mrs. de St. Romes’ rights, or at least it is a very important legal question, which we reserve. We are of opinion that the remanding of the case may afford the interested parties an opportunity to show, by legal evidence, that the certificate in question, of the notary, was properly and legally granted. It is therefore ordered and decreed, that the judgment of the District Court be reversed, and the case be remanded to be proceeded in according to law and in conformity with this decision; Mrs. de St. Romes, appellee, to pay the costs of this appeal.