187 So. 295 | La. Ct. App. | 1939
A statement contained in the opinion of the court in the case of Broussard v. Le Blanc, 44 La.Ann. 880, 11 So. 460, 462, may be said to have given rise to some confusion which no doubt prompted counsel for plaintiff in this case to stress the contention made by him. In that case the court held that the protection accorded by law to the innocent mortgagee who advances money to a special mortgagor under a recorded title to the property does not extend to the judicial mortgagee whose rights arise by simple operation of the law. The court added this statement however that "In any event, this principal is without application, when the mortgagor is out of possession of the property mortgaged," citing Hunter v. Buckner, 29 La.Ann. 604, as authority. From that statement it might be inferred that the case cited was authority to the effect that the principle referred to did not apply even in cases of special mortgage when the mortgagor was shown to be out of possession of the mortgaged property.
Looking to the case of Hunter v. Buckner we find it to be nothing more than an emphatic affirmance of the principle that the record owner by a title translative of property may grant a valid mortgage on that property even though he is shown not to be the real owner. In that case, parol testimony offered to prove certain matters relating to the contract under which the record title appeared in the name of the mortgagor had been rejected in the lower court and, in commenting on that phase of the case, the Supreme Court said: "It is of no consequence to the outside world what the contract really was between Wamsley and these parties. The only matter that third persons are concerned with, is to know what Wamsley and his vendors say that the contract is. There was on the public records, and in its proper place, an act of sale by which a title, translative of property, was conveyed to Wamsley of a certain tract of land, the price of which was acknowledged to have been paid in full, and he was in possession of it. He mortgaged that land to a bona fide creditor to secure his debt. There is no pretense of fraud, or simulation, or collusion, or bad faith, nor is there any knowledge alleged or brought home to the creditor, of the secret purposes or understandings of these numerous parties, if indeed such existed, and he can not be affected or injured by them." The possession of the property by the mortgagor is referred to, in our opinion, to give added weight and strength to the position of the mortgagee. It is mentioned among others as one of the matters he had to rely on in dealing on the faith of the public records, but it was not an indispensable requirement in establishing his good faith when it otherwise appears that he could have placed his entire reliance on the public records as he found them.
In the matter of the protection which it affords to a party dealing with property on the faith of the public records the law imputes the same good faith to the mortgagee as it does to the purchaser. In Frederick Davis, Adm'r, et al. v. Greve Wilderman et al., 32 La.Ann. 420, 421, the court stated: "It is well settled that the holder of the legal title, which is properly inscribed in the public records, whether it be simulated or fraudulent, conveys a good title to the purchaser in good faith. There can be no difference, in principle, between the good faith of the purchaser, and the good faith of the mortgagee, so far as their respective rights are concerned; and jurisprudence makes none." The status of the mortgagee in this particular *297
has been likened to that of the purchaser in several other cases — among them Dreyfous v. Childs et al., 48 La.Ann. 872, 873, 19 So. 929; Foster's Heirs v. Foster's Adm'x,
We are of the opinion that in this case, the district judge was rather liberal in extending every consideration to the claims of the plaintiff, but after all he had to resort to what was the sole issue presented and that is whether or not by virtue of its title which originated in a mortgage given by the then owner of record of the property against whose title there appeared no defects whatever on the public records of the parish, the defendant is entitled to the benefit of that rule of law which has become almost consecrated in our jurisprudence to the effect that one who acquires property dealing on the faith of the public records will not be affected by any knowledge acquired outside of those records. In the case of Westwego Canal Terminal Company v. Pizanie,
Convinced as we are of the correctness of our former judgment in this case, it is now ordered that the decree therein be now reinstated and made final.