City Bank of New Orleans v. Huie

Bullard, J. The sheriff having sold under execution, certain city lots belonging to the defendant, Huie, the Second Municipality of New Orleans having a lien or mortgage on the lots, resulting from an assessment for opening a street, under the act of 1832, took a rule upon other creditors of the defendant, to show cause why the sheriff should not retain in his hands the amount of their claim out of the proceeds of the sale, to be paid to them in preference to all other mortgages. This rule was at first made absolute ás to all the parties, but was afterwards, by agreement, opened as to the Bank of North Carolina and James Armor. The statement of facts shows, that the mortgage in favor of James Armor was recorded on the 8th of July, 1839, and [238] that of the Bank of North. Carolina on the 23d of December, 1839; and that the lots in question were assessed according to the provisions of the act of 1832, in the sum claimed by the Municipality, and that on the 10th of October, 1840, the schedule of assessment against Huie was recorded in the office of the recorder of mortgages. The District Court considering that these different mortgages were to rank according to the date of their registry, discharged the rule, and the Municipality has appealed. The counsel of the appellant contends that its claim, under the assessment in virtue of the act of 1832, is privileged, and of a higher rank than a mortgage, and should he paid by preference, whatever may have been the time at which it was recorded. The seventh section of the act, after directing in what way the assessment shall he made, provides, that ‘the sums so assessed shall be a lien on the said lands and premises into whosoever’s hands they may pass, as a mortgage, provided that the same shall be duly recorded in the office of the recorder of mortgages.’ The argument of the counsel would have great force, if all privileges necessarily existed without registry. But such is not the case. Most privileges now existing by law, are required to be recorded in order to operate against third persons. Publicity, if not of their essence, is necessary to give them that effect. That part of the statute which gives to the assessment the effect of a lien, is modified by the expression ‘ as a mortgage,' and by the proviso, that the lien is subject to the condition of being recorded in the office of the recorder of mortgages. If we were to adopt the construction of the statute, contended for by the counsel for the Municipality, we should disregard altogether the proviso to the seventh section, contrary to the well settled rule of construction that effect must be given, if possible, to every part of a statute. We therefore fully concur in the opinion given by the district judge. Judgment affirmed.