Layman v. Vicknair

— 683 — The opinion of the court was delivered by Nicholls, O. J. The two notes upon which plaintiff sues are those mentioned in the act of sale of 27th January, 1889, from Felix Las-seigne to Leufroid J. Troselair, representing part of the purchase price of the property then sold, secured by special mortgage and vendor’s privilege, and as having been then delivered by the notary to the vendor, Lasseigne. In point of fact these notes represented no part of the price. Ernest Roger, one of the witnesses to the act between Lasseigne and Troselair was then a creditor of Troselair to the amount of the two notes, and his indebtedness was secured by mortgage upon the property which the latter sold to Lasseigne (or in point of fact exchanged) for the Vieknair tract. When the exchange was made one property was exchanged as being of equal value with the other, but Roger having raised his mortgage from the land it had previously affected, it was necessary that he should be secured on the property to be substituted in lieu of it. In order to accomplish this the two notes mentioned were made and recited as being part of the price, when in reality they represented simply the indebtedness of Troselair to Roger, which was then being transferred over as to the mortgage securing it to the newly acquired property. Roger testifies he acquired the notes on the 27th January, 1889, and the probability is (the recital of the act to the contrary notwithstanding) that they passed directly from Troselair to him. He says that he transferred the two notes to Layman a few days before the first note fell due as collateral security to secure an amount he had borrowed from him. The evidence is not positive on the point, but we are inclined to think that Roger knew all the facts of the case throughout, although he may not have appreciated fully all their legal consequences. There is no questioning the fact that at the date of the sale from the husband, Lasseigne, to Troselair, one-eighth of the property which the vendor undertook to sell, and the purchaser, in acquiring, undertook.to mortgage, belonged to the wife. We are called on to determine here what effect, the mortgage given on that portion of the property has against her, the actual owner. It is pressed upon us that both Roger and Layman acquired the notes before maturity for value in good faith and in due course of trade, and on the faith of the public records, and that they are not to be affected by latent equities or by fraud in other parties. If plaintiff’s position were maintained, it would not — 684 — be as the result of the application of the rules of the commercial law, cutting off the equities which existed between the original parties to promissory notes by reason of their transfer by endorse - ment before maturity for value to innocent third parties. We have repeatedly held that though under the rules referred to the equities might be barred as against the maker’s personal liability upon a note, yet the mortgage securing it not being negotiable, those equities might be invoked against the enforcement of the accessory obligation. As late as January, 1893, we said in Bank vs. Flathers, 45 An. 78: “Mortgages are not negotiable. We have never to our knowledge held the contrary.” It is true that in that case this court allowed the mortgage to be enforced, notwithstanding defences which might have been good between the original parties; but we took especial care to say: “ Out- opinion rests upon no assertion of the negotiability of mortgages, but upon other principles of law and equity which forbid a man who, as a security for negotiable notes, has executed a mortgage which he had the full right and capacity to make on property belonging to himself by an act suggesting on its face no defect duly recorded and importing confession of judgment in favor not solely of the mortgagee, but of any future holder of the note, to impair its binding force by pleading secret; equities created by his own fault, negligence or imprudence, and of which the subsequent holder of the note had no notice and no means of information. When cases arise in which the above elements, or some of them, are missing, we will determine them according to their particular facts.” In Lester vs. Connelly, 46 An. 340, where a married woman separate in property sold by authentic act her paraphernal property, taking notes from the purchaser, secured by special mortgage and vendor’s privilege, we ordered the enforcement of the mortgage and privilege (the notes having fallen into the hands of innocent third parties), although the sale was a disguised mortgage for the benefit of the husband. The decision in that case was based upon the fact that the wife had the absolute legal right with the authority of her husband to sell her paraphernal property, and to dispose of the proceeds as she might deem fit. We said “ the paraph required the holder to look to the registry of the act with which the notes were identified, which had for its ‘object the protection of third parties. The registry of the act of sale informed the defendant that plaintiff, a married woman, separate in property from her husband, with his — 685 — authorization, had sold to one Leveque her paraphernal property, part for cash, and the balance on terms of credit, evidenced by notes. There was nothing in the act to put him upon inquiry, or which remotely suggested that the sale was in fact a mortgage exe - cuted for the purpose of raising money for the husband’s benefit. There was no duty imposed upon him to inquire into what disposition she made of the proceeds of the sale.” The case just cited differs in material, respects from the one at bar. Mrs. Lasseigne did not sell the property to Trosclair with part of the price secured in her favor by mortgage. It was sold, or claimed to have been sold, by the husband, and the mortgage notes were given to neither husband nor wife, but to a creditor of the vendee himself. The original holder of the notes, Ernest Roger, not only, in our opinion, knew of the facts of the case, but he additionally applied to Coulon, the notary, before whom all the acts were passed, for information and who unquestionably had full knowledge of the exact situation. Layman, the plaintiff in this case, says that he alsó, before taking the notes, sought information from Ooulon, though he says he was informed by him that everything was right. In the act of sale from the husband Lasseigne to Trosclair, we find the description of the property sold followed by the words : “Being the same property acquired by vendor of the heirs and legal representatives of the late Valery Vicknair and his wife Adele Vicknair, in the proportion of the one undivided eighth from each of said heirs by public and authentic acts, all duly inscribed in the records of the clerk’s office of this parish.” Valery Vicknair and Adele Vicknair, here referred to, were the father and mother of Mrs. Lasseigne, and she was one of the eight heirs from whom the vendor declared he had purchased. Referring to these words and the reliance placed upon them by counsel of the wife, plaintiff’s counsel say: “ It is argued that the world was put upon notice, but the court could not do otherwise than hold that they must be taken as a whole, and that any lawyer who would have been employed to trace title or examine records as to mortgages an 1 incumbrances would certainly have attached more importance to reference by conveyance books, numbers and pages thereof, than to the phrase “ acquired of the heirs and legal representatives of the late Valery Vicknair and his wife Adele Vicknair.” This last phrase is a mere ipse dixit of the notary, which may or may — 686 — not be true, but reference to the conveyance books by numbers and pages furnishes information of which all lawyers avail themselves, and by which they are governed in their examination of records as sending them at once to reliable and authentic data. Taken as a whole, any lawyer of experience would at once have taken, not the ipse dixit of the notary, but the conveyance books to which special reference is made by number and page, and he would readily have ascertained that reference to conveyance book No. 24, p. 872 et seq., was a sale, not by the heirs of Valery Vicknair and wife, one of whom was the co-defendant, Mrs. Felix. Lasseigne, but a sale by Anatole Naquin to Felix Lasseigne, hence Felix Lasseigne did not derive title to his wife’s one-eighth from his wife directly. In looking up titles and mortgages parties are held to examine act by act, mortgage by mortgage, and not to place any blind faith in references to books, numbers and papers, much less to the mere ipse dixit of a notary. A copy of the act of sale last mentioned being in the record, we have examined the same (as it was the duty of all parties relying exclusively “ on the faith of the public records ” as the ground for maintaining their rights to have examined it), and in this act from Naquin to the husband we find it declared that “the property then being conveyed was “ the same property acquired that day before the undersigned notary of Mrs. Felix Las-seigne.,'> The record would therefore have disclosed the fact that upon the same day, before the same notary, and before the same witnesses, the property which ostensibly passed from the wife to Naquin for cash, ostensibly passed at once from Naquin to the husband. A record showing such facts was not of such a character as to form the basis of a claim by any one who dealt with the husband or with Trosclair (the vendee from the husband) that he had been deceived into contracting with them through the condition of the public records, and that “his mortgage rights could not be defeated by secret equities between the original parties of which neither the act nor the public records afforded any notice or means of information.” We are of the opinion that when the records show on their face, as it did in this instance, that the property once belonged to the wife, and that when it passed ostensibly from her it went afterward into the apparent ownership of the husband, any one looking at the acts — 687 — would have been, or should have been, at once placed on his guard as to the reality and good faith of the transactions. We do not mean to say that a case might not arise where property which once belonged to the wife could not properly and legally be subsequently owned by the husband, but any one dealing with property under such circumstances must rely upon something more than the mere face of the record; he must be prepared to sustain the. title by an affirmative showing, against an attack made upon it by the wife, on the ground that she had been defrauded of her rights for the benefit of her husband, or her husband’s creditors. The time at which either Roger or Layman acquired the notes sued on plays no part in the decision of this case. We have to deal not with the notes, but with the condition of the property as it appeared of record. For the purpose of the mortgage, each and both were bound to make an examination of the record. Had the mortgage which is sought to be enforced here been placed upon the property by Naquin, while in his apparent ownership, under the sale from Mrs. Lasseigne, matters would be different from the actual ease where the property had passed through the husband before the mortgage was granted. While we realize the importance of construing the law so as to protect the general public in their dealings “on the strength of the public records,” we can not consent by construction or from motives of supposed public policy to render nugatory positive laws enacted for the benefit of married women. We have gone as far in that direction as we properly can. Parties defending as against the actual rights of married women, under estoppel claimed, from the condition of the records, must have examined the records, and will be held to have known, or as bound to have known, what appears from them, and to a knowledge of the presumptions which flow from the facts as disclosed by them. If the records furnish means of information, the information must be sought for. For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and it is hereby annulled, avoided and reversed, in so far as it recognizes and orders to be enforced the special mortgage and vendor’s privilege declared upon by the plaintiff upon the property transferred on the 9th of March, 1889, by two public acts before Henry Nicholas Ooulon, notary public, from Victoria Vicknair, wife of Felix Lasseigne, to Anatole Naquin, and by Anatole Naquin to Felix Las — 688 — seigne, being the same property claimed by the defendant herein, the said Victoria Vicknair, as having been by her inherited from Valery Vicknair and Adele Vicknair, his wife — her father and mother; and, lb is now ordered, adjudged aud decreed that the demand of the plaintiff, Leopold M. Layman, in so far as it concerned the defendant, Victoria Vicknair, wife of Felix Lasseigne, and affected or concerned the property just above mentioned, be and the same is hereby rejected, and the act of special mortgage and vendor’s privilege, evidenced by the act of sale and mortgage passed before the said Ooulon, notary public, on March 27, 1889, be and they are hereby declared to be null and void, in so far as they affected the said property, and the evidence of the’ said mortgage and privilege are hereby ordered to be canceled and erased from the records of the parish of Lafourche, in so far as they affect the said property. Oosts of both courts to be paid by the plaintiff.