French v. Prieur

Garland, J. The petitioner alleges, that for the purpose of paying the debts of the estate of Fox, the Court of Probates of the Parish of Orleaná, ordered a sale of the property to take place at public auction, by the Register of Wills ; at which sale, certain lands and lots were sold, on which the deceased had given mortgages to different persons; that he is desirous of erasing these liens from the records kept in the defendants’ office, and that for this purpose he has made a public act, authorizing and requiring the said defendant to erase' the same, which has been presented to him and which he declines to comply with, without any good and legal cause ; wherefore the petitioner asks for a rule on the said Recorder of Mortgages, to show cause why a mandamus should not be issued, compelling him to cancel said mortgages, and erase them from his records. The answer to the rule is, that being a ministerial officer, it is not his duty, or within his province to decide whether the mort [302] gages should be concelled and erased, or not; and he asks to be discharged. The evidence offered by the petitioner, is a petition presented to the Court of Probates by his predecessor in the office of executor, praying for a sale of the property belonging to the estate, for the purpose of paying the debts, at the foot of which is an order of the Judge, directing the property to be sold after the legal advertisements ; also an act, or declaration made by the petitioner before a Notary Public, in which he describes the lots sold, and the mortgages upon them, and recites that the Register of Wills has sold them, in obedience to the order of the court, wherefore he (the petitioner,) authorizes the erasure and cancelling of the mortgages, and releases the same. It is not shown that any other evidence than the last mentioned act, was presented to the Recorder of Mortgages; nor does it appear that the application to sell the property, was ever notified to any person, either creditor or heir; nor is it shown by any act, or certificate from the Court of Probates, or the Register of Wills, that the property has been sold conformably to law, and the order of the court. In 3 Robinson, 35, we held, that an executor could not sell the property confided to his charge, without notice to the heirs, as it might be their interest to furnish him with money to pay the debts and legacies, and thus prevent a sale. Mortgage creditors have by law, certain rights secured to them, in relation to the sale of property belonging to successions ; and it would seem but just, that they should have some notice of an application to sell that on which their lien exists, and thereby to discharge it. There cannot now be a doubt that a sale of the property composing a succession, legally and regularly made under a judgment of the Court of Probates, discharges the mortgages on it, which may have been given by the deceased. The purchasers take it free of any such incumbrances, and the Court of Probates has the power to erase them all. 17 La. 378; 9 La. 197; 2 Mart. N. S. 224, 336. But we know of no authority that the District Court has to issue a mandamus to the Recorder of Mortgages, commanding him to erase mortgages, without notifying the parties interested in them. The cases reported in the 9 and 17 La., originated in the Court of Probates, and the parties interested were notified. [303] See also 5 La. 329. Independent of this fatal objection, there is no other evidence of a sale having been made than the declaration of the applicant for the rule, which is insufficient. The pro-cos verbal of the sale and adjudication, is the best evidence, and forms a title to the purchaser. The judgment of the District Court is annulled and reversed, and the rule prayed for discharged; the appellee paying the costs in both courts.