John Chaffe & Sons v. Walker

Tlie opinion of tlie Court was delivered by Todd, J. The plaintiffs and intervenors are judgment creditors of the defendant. Their judgments were rendered at the same term of the district court of DeSoto. The judgments in favor of the plaintiffs (John Chaffe & Sons, and Nelson McStea), were recorded in the mortgage record book of said parish on the 3d of April, 1883, and that of the intervenors on the 20th of the same month. The only question for our determination is whether the judicial mortgages in favor of these parties (plaintiffs and intervenors), operate concurrently on the property subject to the mortgages, or are the plaintiffs’ mortgages, being first of record, entitled to precedence. Prom a judgment decreeing that they were of equal rank, and operated concurrently on the property, tlie plaintiffs have appealed. The judgment of the lower court is based on the construction given by the judge to art 555 of the Code of Practice, which reads : “All judgments rendered * * * shall be considered as having-effect only from the last day of the term, whatever may be the day on which they shall have been signed.” The judge concluding that as a judicial mortgage results from the recordation of a judgment, that it only becomes operative when the judgment goes into effect. The counsel for the plaintiffs contends that the question when a judicial mortgage takes effect or becomes operative is in no wise dependent on that article or any other provision of the Code of Practice, but is to be determined entirely by the articles of the Civil Code on the subject of the registry and rank of mortgages. This precise question is for the first time before this court for adjudication. We are pointed to the decisions—29 Ann. 518; 35 Ann. 285 — as conclusive of the point. These decisions are to the effect only that prescription against judgments begins to run from the last day of the term at which they are rendered; which we do not consider as determining the question. [37] The articles of the Civil Code referred to bearing on this point are as follows: Art. 3322. “The judicial mortgage takes effect from the dav on which the judgment is recorded in the manner hereafter directed.” Art. 3323 : “ If there be an appeal from the judgment, and it is confirmed, the mortgage relates back to the day when the judgment was recorded.” Art. 3329 : “ Among creditors, the mortgage, whether conventional, legal or judicial, has force only from the time of recording it ” Art. 3358: “ The creditors whose inscriptions have been made on the same day possess a concurrent mortgage, and no distinction is made between the inscription made on the morning or that made in tlie evening * * * .” If it were not for the article of the Code of Practice above quoted, not the slightest doubt could exist that the judicial mortgage is in force from the day on which the judgment is recorded, and that only those can have concurrent mortgages who have recorded their judgment on the same day, so plain, positive and unambiguous are the declarations of the Civil Code in the above articles on this subject. After a thorough consideration of the question, and an examination of all the authorities in any way bearing on it, we have reached the conclusion that there is not a real conflict in the articles of the two Codes, and that the articles last above cited are not controlled or affected by the article of the Code of Practice quoted and relied on by the counsel for the intervenors. It is to be considered that the Code of Practice is intended and designed to establish rules of civil procedure. Thus it defines what actions are, how they are prosecuted until they culminate into judgments, what those judgments are, and how they may be enforced or executed, and treats of all matters germane thereto. On the other hand, the Civil Code treats of legal rights that give rise to actions and the different kind of contracts and obligations, and the manner in which they are created and preserved, and other kindred subjects. It is easily perceived that the whole subject of mortgages,' — how created and in what manner to be registered and the purpose of registry, etc., —belongs exclusively to the latter Code. This Code declares, as shown above, that the inscription of a judgment in a certain book, and in an office designated, gives rise to or creates a mortgage. It is not the judgment per se that constitutes the mortgage, but its inscription in the mortgage as prescribed; for the Code of Practice, art. 545, provides that: [38] Definitive judgments, though entered on the docket of the judgments of the courts, shall not affect the property of the person against whom such judgments have been rendered;” but it is added, “that such judgment must be recorded at the office of mortgages in order to give the party a judicial mortgage.” From which latter clause it is plainly inferable that such final or definite judgment, when so recorded, does give a judicial mortgage. But it is contended that there is no judgment; that it does not come into existence until the last da.y of the term of the court at which it was rendered. It seems paradoxical to say that a judgment which the law terms final and definite, which is signed by the judge, that when it is thus rendered and signed, and is final, definite and conclusive between the parties, that it still lias no existence ! C. P., 539, 546. When a judgment is thus rendered and signed “it becomes the property of him in whose favor it is given, and the judge cannot alter it except in the mode prescribed by law.” C. P. 548. There is another article to be found under the head of “ appeals ” that throws additional light on the true intent and meaning of article 555 touching the expression therein “ that judgment shall be considered as having effect only from the last day of the term.” It is article 575, one clause of which provides (quoting): “That in the country parishes no execution shall issue in cases where an appeal lies until ten days after the adjournment of the court by which the judgment was rendered, within which delay a party may take a suspensive appeal.” When we consider that in other articles the judgment when rendered is termed a definitive or final judgment, that it constitutes res adjudicata between the parties, and moreover construe all the articles together including the one last quoted (575), the conclusion is inevitable that nothing was meant by article 555 other than that the judgment did not become executory, and its payment could not be enforced until the time stated; and that the two articles taken together relate exclusively to the execution of judgments and appeals therefrom ; and were designed to make ample provision for suspensive appeals and to facilitate the exercise of the right of appeal, by together declaring appealable judgments inexigible not only until tire last da3! of the term but for ten days thereafter. It is to be noted moreover that with regard to devolutive appeals, the right of appeal is for one year, not from the last day of the term, but “ from the day the final judgment was rendered.” Tn appealable cases, a suspensive appeal renders the judgment a]) [39] pealed from as ineffectual and inoperative during tlie pendency of the appeal and until affirmed by the appellate court as the temporary suspension provided by art. 555 C. P., from the date of its rendition till the last day of the term, yet no one would seriously contend during that period of suspension — often lasting for years — that its recordation during that term would be without force and effect. Yet there is just as much reason to declare it inoperative for the one period as the other. There is another consideration that is strongly confirmatory of these views and favors the conclusion that Article 555, C. P., in no manner affects the question of judicial mortgages, but that that question is entirely regulated by the provisions of the Civil Code. It is this : In all sales under execution of judgments, the recorder of the parish is required to furnish the sheriff a certificate of mortgages; the object of which is to show what incumbrances are on the property, to establish the rank of the mortgages and privileges, and to regulate the distribution of the proceeds of sale. Of course this officer makes out the' certificate from the mortgage book in his office; that alone is relied on for information. Now if the rank of the judicial mortgages was not to be determined solely by the respective dates of the record of the judgments, then the certificate furnished would be calculated to mislead and deceive. In fact according to the theory of the interveuors’ counsel, the certificate thus made out from the mortgage record would be false on the face of it, and that the recorder at least so far as relates to judicial mortgages should not have consulted his record, but should have examined the records of the court rendering the judgment to ascertain the last day of the term thereof, and be controlled by the knowledge thus derived in making out his certificate! It might happen that the judgment under which the property is being sold was rendered in a distant parish from the place of sale, and then the officer would have to search the court records of that parish to discover the vital fact that was to guide him in making out his mortgage certificate. And sometimes it might be the case that the judgments were rendered in several parishes, a lid then investigations would have to be made in the court records of all these parishes to obtain the requisite information for a mortgage certificate! It is needless to say that the law imposes no such unreasonable and herculean tasks upon the recorders. They are required to make out their mortgage certificates from the mortgage records in their offices, and this requirement is essentially a legal declaration that the amount [40] of judicial mortgages, the rank of such mortgages, their respective dates, and everything relating to them is to be established by such records and they alone are to be consulted. Our conclusion is that the judicial mortgages of the plaintiffs became operative from the date of the incription of their judgments in the mortgage book — the 3d of April, 1883 — and that they prime the mortgage of the intervenors inscribed on the 20th of the same month and year. It is therefore ordered, adjudged and decreed that the judgment of the lower court, in so far as it decrees that the judicial mortgages of the plaintiffs and intervenors operated concurrently on the property subject to the mortgages or its proceeds, be annulled, avoided and reversed ; and it is now ordered, adjudged and decreed that the judicial mortgages of the plaintiffs have precedence over that of the intervenors, and that the plaintiffs are to be first paid out of the proceeds of the same, that the intervenors pay costs of their intervention in both courts, and that the judgment in other respects be affirmed.