Verges v. Prejean

Howell, J. The only question presented in this controversy is the validity of the registry of the mortgage and vendor’s privilege retained by Drausin Bergeron, the third opponent, claiming the proceeds of property sold under a mortgage granted and recorded subsequent to his. The facts of the case are that the act of sale in which Bergeron’s mortgage was retained was registered in the book of conveyances kept by the recorder of mortgages, but not in the hook of conventional mortgages, as required bylaw, while the mortgage of Verges, under which the proceeds were realized, was properly registered. It is contended, however, by Bergeron, that, because during a period of several years, embracing the date of his sale, no registry of mortgages was made in the book of conventional mortgages, the registry of his act of sale in the book ot conve3rances must be held to he a compliance with law and operate the recording of his mortgage and vendor’s privilege, and he quotes several cases as authority to sustain this position. See 2 An. 438, 800,- 5 An. 154. In those cases no special book for mortgages was kept by the recorder and all sales and all mortgages were inscribed in the same hook, and it was properly held that it is only where separate hooks are kept that parties can bo led astray by an improper registry. In the case at bar it is shown that separate hooks were kept in the office, but for several years the recorder of the parish failed to make any registry or inscription in the hook of conventional mortgages, and the plaintiff, Verges, was misled as to the alleged registry of Bergeron’s mortgage, for before taking his mortgage he employed counsel to examine the records, who did so and obtained a certificate from tlie recorder that no mortgage upon the property existed at the time, except one in favor of the said Verges, which was recognized and included in the one which was enforced in this proceeding. The law required that if the act contain a conveyance of real estate without a mortgage, it should he recorded in a hook of conveyances; if it contain a conveyance of real estate, together with a mortgage, it should he recorded doth in said hook of conveyances and in a book of [79] conventional mortgages. Bergeron’s act contained a sale of real estate together with a mortgage, and was recorded in the book of conveyances, but not in the book of conventional mortgages, then in the recorder's office. Hence his mortgage liad no effect against third persons. 21 An. 427; Acts of 1855, page 407, sections 13 and 14, page 335, sections 1 and 2; C. C. 3314, 3332. It is therefore ordered that the judgment appealed from be reversed and that there bo judgment in favor of plaintiff, H. Verges, decreeing him entitled to the proceeds of the sale of September 7, 1867, in satisfaction of his judgment with mortgage against defendants, Prejean & Bernard, with costs in both courts.