Buchanan v. Morgan, 7 La. Ann. 454

Buchanan v. Morgan

7 La. Ann. 454 | La. | 1852

Lead Opinion

By the court: (Slidell, J., dissenting.)

Eustis, C. J.

The plaintiff obtained an injunction against the sale of two certain lots, situate in the former Nun’s faubourg, in the parish of Jefferson, which had been seized under an execution against Albert Wintercast.

*455The district court maintained the injunction, decreeing the lots to belong to the plaintiff, and not to be subject to the judgment against Wintercast. The defendant, who is the judgment creditor of Wintercast, has taken this appeal.

On the 3d of October, 1843, O. P. Jackson sold the lots to Wintercast, by public act, which was duly recorded. On the 19th of June, 1844, Wintercast reconveyed the lots to his vendor, Jackson, by public act, which was not recorded. On the 14th of December, 1848, Jackson conveyed the lots to Hyde. Hyde conveyed them to Thomas, and Thomas to the plaintiff. These three conveyances from Jackson to Hyde, Hyde to Thomas, and Thomas to the plaintiff, purport to be sales for a valuable consideration, and were by public act duly recorded in the parish of Jefferson.

The ground, on which it is contended the lots are subject to the judgment and execution against Wintercast, is, that the act of sale from Wintercast to Jackson, was never recorded as required .by law. The district judge was of opinion, that this defect was cured by the registy of the subsequent acts, and the possession under them; and on the authority of the case of Stockton v. Briscoe, 1 Ann. 249, held the plaintiff’s title to be valid against the creditors of the original owner, Wintercast.

The judgment under which it is attempted to affect the property in the hands of the plaintiff, was not rendered until April, 1851; the debt in which it was rendered, only originating in September previous, in the city of New York. By the act from Wintercast to Jackson, in 1844, Wintercast divested himself of possession of the lots in favor of Jackson, who acknowledged himself to be in possession thereof. In 1849, they were assessed in the tax roll as belonging to Hyde, and in the assessment of 1850, as the property of the plaintiff.

The law considers the tradition of real property, as accompanying the public act of sale, and every obstacle to the corporal possession interposed by the seller, is held to be a trespass. Code, 2455.

The vendors of the plaintiff, had not only the possession resulting from the sales, but stood upon the tax records of the State as owners of the property, and openly assumed the responsibilities and charges of possession and ownership. Under the principles recognized by this court, in the case of Poydras v. Laurans, 6 Ann. 771, and cases there cited, the decision of the district court is clearly right.

The judgment of the district court is therefore affirmed, with costs.

Dissenting Opinion

SniDEim, J.,

dissenting. By the act of March 25th, 1810, chapter 25th, section 7, it is “provided, that no notarial act concerning immovable property, shall have any effect against third parties, until the same shall have been recorded in the office of the judge of the parish, in which such immovable property be situated.

By the Act of 1846, p. 71, (the office of parish judge having been abolished,) the office of parish recorder was established.

My views on the subject of registry, in cases not characterised by fraud, have differed from those of my brethren. I stated them at some length, in Stockton v. Briscoe, 1 Ann. 249. They have undergone no such change in any particular, as would enable me to concur in the decree in the present case; but I do not conceive it suitable to state them again at length. I, therefore, refer to what I then said, and to the cases cited below.

The doctrine, that an omission to register, is cured by the registry of a subsequent title, accompanied by possession, has always seemed to me dangerous, *456particularly with regard to uncultivated lands, or vacant lots in towns or cities. I do not see how, under this theory, an individual can safely buy, or a bank or capitalist safely loan money, upon unimproved lots, or uncultivated lands. The common course of examination of title, by the attornies of banks and individuals, has been to trace the title down by a satisfactory chain of conveyances, to the person proposing to sell or mortgage, and obtain from the recorder or register, certificates of freedom, from sales or mortgages by him; and the more cautious, properly take like certificates as to the antecedent proprietors. But upon the theory of Stockton’s case, it would be necessary to have a general search, to see if any individual, other than the proposed vendor or mortgagor, had sold or mortgaged the property in question. A recording officer might, I think, lawfully l’efuse to give such a certificate. But if he were willing to undertake such a search, the labor of weeks would be required in New Orleans for one certificate, and the duties of the office would become impracticable. A strict construction of the registry laws, must undoubtedly result in cases, of individual hardship. But will not the opposite interpretation, lead to results equally, or even more dangerous 1 Under the former, the diligent are safe. Under the latter, the assurance of safety, is almost an impossibility. Aside, however, from the consideration of results, what is the legal meaning and effect of the very stringent language of the statute ? See Carraby v. Desmarre, 7 N. S. 661. Gravier v. Barron, 4 L. R. 239. Hagan v. Williams, 2 L. R. 122. Mary v. Lampré, 6 R. R. 314. Tulane v. Levinson, 2 Ann. 787. Crear v. Sowles, 2 Ann. 698.

I am not aware that our jurisprudence makes a distinction in this matter, (which the statute does not make) between a judicial mortgagee, and a conventional mortgagee, between a creditor who attaches, and a purchaser who buys from the vendee, who has already sold by a deed, which the previous buyer had neglected to record.

What would be the effect of actual possession for a length of time sufficient under the code, to form the basis of a plea of prescription, is a question not presented in this cause.

The natural equity of this case, is against the defendants; but I think the law is in their favor.