11 Rob. 171 | La. | 1845
It appears from the record that a judgment having been obtained by the plaintiff against the defendant Gaiennié, on the 2d of January, 1838, and having been duly recorded in the office of the Recorder of Mortgages, an execution was issued thereon, which was levied, on Gaiennié’s property, which property was sold on a credit of twelve months, in consequence of which a bond was furnished by the purchaser for the benefit of the judg-mentcreditor. After the taking of said bond, Gaiennié, on filing the certificate of the sheriff showing how the proceeds of the property seized and sold, and the bonds given by the purchaser had been disposed of in satisfaction of said judgment, moved the court for an order cancelling the judicial mortgage existing on the rest of his property, whereupon, on the 30th of August, 1839, a judgment was rendered, ordering that the'said judicial mortgage resulting from the recording of said judgment he raised and cancelled. It does not appear that the judgment creditor was even notified of the motion. The bond due to the plaintiff not having been paid at maturity, an execution was issued thereon, the same property was resold, and only produced an amount which went to the satisfaction of the costs.
It further appears from a certificate of the Recorder of Mortgages that, in consequence of said judgment, and on the filing in his office of a certificate signed by the deputy clerk of the Dis
The object of the present action is to reinstate the judicial mortgage against the property of the defendant Gaiennié, as though the same had never been erased, and to obtain a judgment that the petitioner be decreed to be an anterior mortgagee to the Citizens Bank, for the amount of his judgment, principal and interest.
The judge a quo being of opinion that this action, being in its effect an action of nullity or rescission of the judgment render-! ed on the 30th of August, 1839, said judgment" cannot have any legal effect against a person who was no party to the ex parte order obtained on the motion of Gaiennié, ordered the judicial mortgage to be reinstated in the manner prayed for by the plaintiff; and from this judgment, the Citizens Bank has appealed.
It is perfectly clear, nay, it is even conceded by the appellants’ counsel that the judgment rendered on the ex parte motion of the judgment debtor, was illegal and irregular, and that the Recorder of Mortgages could not have been compelled to cancel the judgment recorded, without the privity of the party who had obtained it, or unless said judgment had been rendered contradictorily with the judgment creditor. This has always been the uniform course of our jurisprudence. 2 La. 489. 4lb. 17. 6 lb. 454. 5 lb. 330. Sep also the case of French v. Prieur, depleted in December, 1843 (6 Rob. 299). In the case of Leverich v. Prieur, decided in June last, in which this doctrine was again reviewed, we held not only that “ a proceeding of this nature ought to be carried on contradictorily with those against whom it is intended to be used but we said also, “that the Recorder of Mortgages yyas npt bound, ex officio, tp make the erasure of
This question is not new in our jurisprudence, and since the ease of Casanova’s Heirs v. Avegno (9 La. 195), we have uniformly held, in substance, that a third party, upon whose rights a judgment is to bear as a protection, is not bound to look beyond said judgment, which, if rendered by a court of competent jurisdiction, must have its full force and effect, and cannot belin-validated or annulled but by a direct action of nullity. 11 La. 149. 13 La. 434. 14 La. 146,468. 17 La. 198.- In the case of Leblanc v. His Creditors (16 La. 124), the judgment ordering the pelease of the minor’s mortgage, was declared binding with regard to the rights of the subsequent mortgage creditors, notwithstanding the alleged illegalities and irregularities sufficient to annul it; and this doctrine was again fully reviewed in the cases of Guesnon v. His Creditors, Rhodes et al. v. The Union Bank, and Dumas, Ex’r, v. Guesnon, reported in 7 Robinson, in which last case, we said that “ mortgages acquired by third persons under the faith and protection of a decree of a court of competent jurisdiction, which had not then been annulled or in any manner attacked, should have their full effect, and should be satisfied in preference to the mortgage previously and perhaps illegally can-celled.”
The appellee’s counsel, however, has mainly relied on the ease of Dreux v. Ducournau (5 Mart. 625), to sustain his position, that the appellants were bound to take notice of the irre
The jurisprudence of the country from which we have derived the greatest part of our laws upon this important subject, appears to be concordant with ours. See Sirey, vol. 11, part 2, p. 472, in which it was decided that: “ Lorsqu’ une hypothéque a été rayée, le jugement ou arrét qui en ordonne le rétáblissement nepeut lui rendre sa premiere date; tout pe qui a été fait dans l’intervalle de la radiation an rétáblissement est bien fait.” 12 Ib. part 2, 370. See also Duranton, vol. 20, Nos. 202 and 203, in which the commentator says: “ Mais ni le recours en cassation, ni la requite ci-vile ne suspendent l’exécution des jugemens, encore que le pourvoi eút été admis ou que la requéte civile eút été regue, tant que le jugement ou Varrét n’aurait pas été cassé ou rétracté; par consequent V inscription pent étre rayée. Cela pent sans donte devenir funeste
With regard to the defendant Gaiennié, the judgment appealed from must stand, and the mortgage be reinstated. It is true he has not appealed; but had he thought proper to do so, it is clear that, as to him, the erasure of the plaintiff’s mortgage, being illegal and irregular, cannot affect the rights of the latter. The distinction is a very obvious one, recognized by the authorities above quoted.
It is, therefore, ordered and decreed, that the judgment of the District Court,' with regard to the appellants, be annulled