Succession of Benjamin

The opinion of the Court was deliveréd by Fenner, J. Loeb & Sclioenfeld, holding a judicial mortgage on the immovables of the deceased, oppose the account herein filed by the administratrix, because, in distributing the proceeds of sale of the only immovable of the succession, the property No. 222 Baronne street, the administratrix awards a preference thereon in favor of Jules Aldigó, as a superior mortgage creditor. Aldige’s claim to a mortgage rests on the following anomalous instrument : (Face of Note.) [613] And the reverse of the note reads: “State of Louisiana, ? Parish of Orleans. $ “Before me, Charles G. Andry, a notary public, duly commissioned and qualified, in and for the parish of Orleans, State of Louisiana, personally came and appeared Mr. Alexander Beujamin, of the city of New Orleans, who being duly sworn by me, notary, declared and said that he is justly and truly indebted unto Jules Aldigó, Esq., also of the city of New Orleans, as set forth in the note, which is on the reverse hereof, in the sum of forty-four hundred and seventy-seven 79-100 dollars, which have been advanced by the said Aldigó to him, the affiant, and applied by him, the affiant, to the payment of a certain piece of property, situated in the First District of the city of New Orleans, in the square bounded by Baronne, Dryades, Julia and St. Joseph streets, and bearing the municipal No. 222 on Baronne street. “ That in order to secure the payment or reimbursement of the said sum to the said Aldigó he, the affiant, does hereby recognize and acknowledge, in favor of the said Aldigó, a privilege and lien on the above described property, and he does also authorize the recording of the said lien and privilege in the office of the Recorder of Mortgages for the parish of Orleans. “(Signed) A. BENJAMIN. “ Sworn to and subscribed before me at the city of New Orleans, this thirteenth day of September, 1884. “(Signed) Chas. G-. Andry, “Notary Public.” The foregoing was recorded before the judgment of opponents, and if it be either a privilege or a mortgage, it ranks their judicial mortgage. . It is apparent that no privilege exists; and the only question is whether the writing creates a conventional mortgage. It purports to “ recognize and acknowledge ” a “ privilege and lien.” Under our law, the term “ privilege ” has a well defined meaning, different and distinct from the term “mortgage.” In a recent case we said: “ The distinction between mortgages and privileges is too elementary and well understood for us to extend the plain significance of a statute nominating privileges only, so as to cover and include mortgages also.” State ex rel. Jackson vs. Recorder, 34 Ann. 178. The only kind of incumbrances on property known to the law of Louisiana are mortgages and privileges. [614] The term Hen is not used iu our law as significative of any particular sort of incumbrance. It is a legal term used geneially to signify any incumbrance on property, but, we may say, usually employed in connection with privileges, and rarely with mortgages. Indeed, it is quite common to use the tautological expression of lien and privilege as applied to a mere privilege, e. g. the vendor’s lien and privilege, the lessor’s lien and privilege. Prom this it is clear that the use of the term lien in addition to that of privilege does, by no means, of itself, indicate the intention to create or recognize a mortgage, or indeed anything in addition'to a privilege. It is to be borne in mind that if there is any mortgage here, it is a conventional mortgage, or one resulting from a contract. The terms of this contract being ambiguous, we must endeavor to determine what was the intention of the parties. Miller vs. Shotwell, 38 Ann. 890. Benjamin expressed his intentions to the notary who prepared the writing indorsed on the notes. Can it be supposed that, if he had expressed or even hinted a desire to grant a mortgage, that experienced and able notary would have drawn up such a writing as is here presented ? Prom the terms of the writing itself, it is perfectly clear to our minds that, from the fact that the note was given for money advanced by Aldigé, and actually applied in payment of the price of the property bought by Benjamin, the latter supposed that Aldigé had acquired a vendor’s privilege on the property; and his simple object was, by the.indorsement, to put the evidence of this privilege in proper shape to be recorded. The whole language indicates this purpose, and is as far as possible from indicating an intention then ana there to create a new and original right. Such would be the purpose suggested from the reading of the instrument. It was the evident interpretation put on it by the Recorder of Mortgages himself, who, when he furnished his certificate, reported this, not as a mortgage, but as a privilege. We have not a shadow of doubt that it was so regarded by the notary, by Benjamin, and even by Aldigé, until, under the necessities of his case, his learned counsel suggested this far-fetched theory of its being a mortgage. Nay, we note that even he, in suing on this note, originally brought a simple personal action, and the claim of mortgage is only asserted, as an afterthought, in a supplemental petition. Mr. Aldigé, though examined as a witness, does not pretend to [615] assert that lie accepted this contract as a mortgage, or ever regarded it as such. To create a conventional mortgage, two things are essential, viz: the intention to create it on file part of the parties to the contract; and, in order to have effect with regard to third parties, the expression of that intention with sufficient clearness to serve as notice to them when the instrument is recorded. Both essentials are wanting in this case, and we are bound to overrule the conclusion of our learned brother of the lower court. It is, therefore, ordered, adjudged and decreed that judgment appealed from, dismissing the opposition of Loeb & Schoenfeld, be annulled, avoided and reversed; and it is now decreed that their said opposition be sustained, and that the account of the administratrix be amended by placing the said Loeb & Schoenfeld thereon as judicial mortgage creditors for the amount claimed by them, with right to be paid out of the proceeds of the immovable property sold, by preference over Jules Aldigé and other creditors; costs of said opposition and of this appeal to be paid by the succession.