Way v. Levy

The opinion of the Court was delivered by McEnery, J. Plaintiffs, A. B. & B. Way, obtained a judgment against their father, A. T. Way, with recognition of their legal mortgage, for over $2700, to date from the 17th day of June, 1870. This legal mortgage was duly recorded in the office of the Recorder of Mortgages for the Parish of Pointe Coupée. After its recordation in the same year, on the 3d day of December, the father, A. T. Way, purchased a tract of land, in the Parish of Pointe Coupée, from Emma and Rebecca Shannon. A special mortgage and the vendor’s privilege were retained to secure the deferred payment of the purchase price. In 1876 the mortgage was foreclosed and the land purchased by John Yoist, who afterward sold it to the defendant, Levy. The plaintiffs, in an hypothecary action, now attempt to subject this property to their legal mortgage, because the act of sale, mortgage and vendor’s privilege were not recorded on the day and date of the act. The act was concluded on Saturday evening, late at the close of office hours, and was recorded without delay on Mon day morning. Defendants, in a separate suit, which is consolidated with this, allege that A. .T Way was never tutor, and that there is no legal mortgage if he was the duly qualified tutor, as the judgment against him was col — 449 — lusively and fraudulently obtained, and tlie same allegations are made with reference to tlie suit of tlie mother of plaintiffs against their father for separation of property, which amount is the basis of the legal mortgage asserted by plaintiff. It is alleged that A. T. Way took no oath as tutor. He took the oath before letters of tutorship issued to him, and after they were issued he took no oath or procured the appointment of an under tutor. The tutorship belonged, of right, to the father. C. C..250. Andas such, without being confirmed, it was his duty to have an inventory made and the minors’ mortgage inscribed. As a stranger to the tutorship, as an intermeddler a trust or legal mortgage would exist against him. He would have been responsible to the minors if he had refused the tutorship and neglected to record their mortgage, or to preserve their rights. C. C. 268. He can not, by omissions, relieve himself from responsibility. Gonsoulin vs. Migues, 5 Ann. 565. We have carefully examined tlie records in the suits of A. and B. Way vs. Their Father, and Amanda Boatner vs. Her Husband, A. T. Way. We have been unable to find any evidences of fraud or collusion, and the judgments in each case-seem to have been rendered upon sufficient evidence. The question now to .be determined is whether or not the minors’ legal mortage affects the property acquired by A. T. Way on the 3d December, 1870. There are numerous decisions in our reports determining the question of the rank of privileges and mortgages resulting from registry. We have attentively examined these cases, and we have found in each, different facts and circumstances attending this. In the Sixth Annual, page 162, White vs. Bank, there was no mortgage stipulated, as is usually done in acts of sale on credit, and the act was not inscribed in the mortgage book, but in the book of conveyances. There was, in fact, no registry ef the mortgage. Iá Porche vs. Le Blanc, 12 Ann. 778, the vendor’s privilege was contracted in the Pa; ish of Assumption, in 1848, and recorded three years thereafter in the parishes where the properties were situated. In Lefose vs. Carom, 7 Ann. 65, the facts were identical with those in White vs. Bank. In succession of O’Lougliline, 18 Ann. 142, the question submitted and determined was whether the. vendor’s privilege had been lost and the mortgage only renewed because the vendor had failed to record the privilege within six days. < — 450 — In Lombas vs. Collet, 20 Ann. p. 79, tlie act of sale was passed 10th March, 1858, and recorded 28th February, 1859 — nearly one year thereafter. In Twenty-eighth Annual, page 305, Bird vs. Lobdell, the contest was between a special mortgage creditor and furnisher of supplies. From the meagre facts stated in the opinion it does not appear that the privilege was deposited or filed with the recorder on the day of the date of the contract. In the case of MacMillen vs. Archinard, 24 Ann. 610, the detailed statement of items of mechanics’ lien was recorded on 23th September, 1879. The question was whether it had effect from the date the contractor commenced work, July, 1868, or only from the date of its recordation. In Twenty-sixth Annua), page 80, Lapene vs. Meezel, there were oppositions filed to the proceeds of the sale of a lot of molasses and sugar. The two privileges which were asserted were recorded at different dates and there was a contest between laborers and merchants for priority, as to which should have preference. In Twenty-seventh Annual, page 290, Gay vs. Borard, the point decided was whether a privilege, ranked a mortgage recorded subsequently and after its date, not recorded on the day it was contracted, had any effect at all. In Thirty-fourth Annual, Succession Clay, it was decided that a vendor’s privilege will have effect and be enforced, although not recorded on the day it was contracted, if no other creditor has acquired rights on the property affected thereby. In Bank vs. Forbes, 27 Ann. 245, E. J. Gay & Co. were the furnishers of supplies for the year 1873, and an open account for that year was filed and recorded only in January, 1873. The mortgage of the bank was recorded in 1868. In Morrison vs. Citizens’ Bank, same volume, page 401, the vendor’s privilege was contracted in New Orleans, in 1856, forwarded to Pointe Coupee, where it remained among notarial acts and was finally recorded in the mortgage book in June, 1808. In the Twenty-third Annual, page 286, Foley vs. Hagan, the facts are not stated as to the time of recording the privileges and mortgages. In Prager vs. Recorder, same volume, page 534, the question was whether a mortgage recorded subsequent to the recording of the privilege would not prime it because it was not recorded on the day it was entered into. In the Slocomb case, 30 Ann. p. 833, the vendor’s privilege was re — 451 — corded in the hook of conveyances, and not in the hook of mortgages. The cases above referred to are cited in case of Gianovitch vs. Gallaugher, 36 Ann. 272, as authority for the ruling in that case that the act must be recorded seasonably. In that case the act of mortgage was recorded five days before the registry of the mortgage over which it took preference. There are cases in which it is indicated if the delay in recording on tiie day the privilege was entered into - can be satisfactorily explained, the delay will be excused and the privilege or mortgage will take effect from the day on which it ought to have been recorded. In Crea vs. Sowles, 2 Ann. 598, the registry of the act of sale was made after an attachment had issued against the property. The court said: “In this case, as in that of Hagan vs. Williams (2 La. 122), the purchaser has failed to account satisfactorily for the delay in making the registry.” In Payne & Co. vs. Pavey, 29 Ann. 116, an hypothecary action was instituted to enforce a judicial mortgage against certain lands in the possession of the defendant, resulting from the registry, on 27th October, 1874, of a judgment obtained against the vendor of the defendant. The defendant purchased the property on 18th January, 1879, and the act was deposited in the recorder’s office in the Parish of Avoyelles, on 8th February, 1872, and the act was indorsed and filed on the same day. It was recorded 18th of September, 1876, after the registration of the plaintiff’s judgment. The court said: “If there was fault, nothing in the evidence shows it to have been that of the defendant’s.” In Rochereau & Co. vs. Colomb, 27 Ann. 337, the facts were that Kenner sold to Celomb immovable property, retaining the usual mortgage and vendor’s privilege. The act was recorded in the Parish of St. James, ten days after its execution. The court said: “The only important question in this case is, could a judicial mortgage, resulting from the recordation of a judgment against the vendee, attach to the property to the prejudice of the vendor’s privilege and mortgage to secure the price in consequence of the delay in recording the mortgage.” * * “If the delay in recording the act in St. James Parish coidd defeat the vendor’s privilege and mortgage, the necessary delay for recording the mortgage, after the agreement to sell, or after the signing of the act of sale, would also defeat the vendor’s privilege.” And again, in the case of Jumonville vs. Sharp, 27 Ann. 461, the plaintiff had a judgment for a large amount against her husband, and she had to secure it a legal mortgage. The property against which she — 452 — attempted to enforce her mortgage was acquired by her husband subsequent to tiie date of her legal mortgage. In the sale to her husband, Vivos,’the vendor’s privilege and special mortgage were revived. The act of sale to Vives was not recorded until 1866, Jive years after the purchase. The property was seized and sold to pay part of the price secured by the mortgage and vendor’s privilege. It ivas held that the delay to record the act of sale and vendor’s privilege could not defeat the vendor’s privilege. The law does not require impossibilities. Article 3393, C. C., requires the recorders to record and register the acts in the order of their dates, without leaving any intervals or blank spaces between them. Only one person can, therefore, record these acts at one time and in one book. It often happens that more acts are passed in one day than can be recorded on the day they are passed. It would be a physical impossibility, at times, to record all the acts passed on one day. All that can be required is that the act be recorded without delay, in its order, in the proper book, and in the language used in Gianovitch vs. Gallaugher, 36 Ann. 272; that it be recorded “ seasonably.” ■In the instant case the act was completed at the closing hour of the office, fixed by law. The next day was Sunday, and it was recorded on Monday morning, without delay, and seasonably. In the country parishes the recorders are ex-officio notaries. After the passing of 'acts it is their duty to commence to record them without delay. Suppose an act should be finished, say at 3 o’clock, and at 4, the legal hour of closing- his office, the recorder had only recorded a part of the act; could a prior recorded mortgage take precedent of the act containing the vendor’s privilege? In this case the act liad been recorded, and the fees for recording-paid. The recorder had commenced his duties in preparing for its recordation, by filing- the act, when interrupted by the closing hour of his official duties. He resumed his work of recordation as soon as practicable. The defendants were certainly in no default, nor was the officer. The act was filed and deposited on the day it was made, and the inscription made without delay, continuing-, with legal interruption, from the closing hour of one business day to the beginning of the next succeeding business hour. The indorsement is a part of the work, preliminary to the inscription, because the law requires it. It is, therefore, ordered and adjudged that the judgment appealed from be amended so as to reinstate the full amount of the minors’ — 453 — mortgage — $2721 98 — and in other respects it be affirmed, plaintiffs and defendants to pay costs, equally, of the appeal.