68 So. 610 | La. | 1914
Lead Opinion
In the present suit, the plaintiff bank sued out executory process upon two mortgages of unequal rank, bearing, to some extent, upon different properties. The mortgage first in rank bore upon two tracts of land situated, respectively, in the parishes of Jefferson Davis and Allen. The one second in rank did not bear upon the property situated in the parish of Jefferson Davis, but only upon the property situated in the parish of Allen. These mortgages were executed by the defendant, Garlick. The one first in rank was made in favor of one Wallace, the other, in favor of the plaintiff bank. Mrs. Martha E. Garlick, wife of the defendant, intervened in the suit, claiming, that the Jefferson Davis parish property belonged to her, and so belonged at the time her husband executed upon it the said mortgage in favor of Wallace, and that said mortgage is in consequence null. She asked that said mortgage be annulled, and in the alternative that the plaintiff bank be required to-exhaust its recourse against the Allen parish property before coming against her said property. Writs of seizure and sale issued to the sheriffs of said two parishes, and by the time the suit came to judgment the two' properties had been sold under said writs for cash to satisfy both mortgages. The judgment was adverse to Mrs. Garlick. She filed
The learned counsel for Mrs. Garlick say that when the public records show, as they did in this case, that the husband’s vendor acquired from the wife, third persons dealing with the husband are put upon inquiry,, and must come prepared with proof that the sale by the wife to the husband’s vendor was a real and bona fide sale, and not a mere cloak for securing a debt of the husband, or-transferring the title of the wife to the husband. In support of this contention the-learned counsel cite Vicknair v. Trosclair, 45 La. Ann. 375, 12 South. 486, Layman v. Vicknair, 47 La. Ann. 679, 17 South. 265, and Douglass v. Douglass, 51 La. Ann. 1455, 26 South. 546.
In the first of these cases, two neighbors, named Dasseigne and Trosclair were desirous of making an exchange of lands, but encountered an obstacle in the fact that Dasseigne was not sole owner of his land, his wife owning a one-eighth interest in it. To-overcome this obstacle, these two neighbors resorted to the expedient of Mrs. Dasseigne making a simulated sale of her one-eighth interest to one Naquin, and the latter, in turn, making a simulated sale to Dasseigne. The wife, in a suit against Trosclair, upon proper allegations, was allowed to show the true character >of these simulated sales. Needless to say, such a case does not present even the most distant analogy with the one at bar.
The second of these cited cases (Layman v. Vicknair, 47 La. Ann. 679, 17 South. 265) grew out of the same exchange of property. Bach of the two properties that were exchanged was burdened with a mortgage, and a part of the exchange agreement was that the mortgages also were to shift. To that end the exchange was given the shape of two reciprocal sales on a credit, the credits-corresponding with the amounts of the mortgages. So that the tract transferred to Trosclair in exchange (including the one-eighth of Mr. Dasseigne) became burdened with a mortgage and vendor’s privilege corresponding in amount with the mortgage that had theretofore rested upon the tract transferred,
“When the public records disclose the existence of equities or facts from which presumptions of their existence flow, parties taking mortgages are put upon inquiry.”
In the case at bar, the two sales — that by Mrs. Garlick to Baldey, and that by Baldey to Garlick — were not made on the same day, or before the same notary and witnesses, but .some four years apart, and before another notary and other witnesses, and were on their face absolute.
The third of the said cited cases (Douglass v. Douglass, 51 La. Ann. 1455, 26 South. 546) did not present the feature of a third person accepting a mortgage, or purchasing outright from the husband, upon the faith of the public records; and as that feature is the. only one with which we are now concerned, the case is not at all in point. It was a case where, as in Yicknair v. Trosclair, supra, two simulated sales had been made, one by the wife to the husband’s vendor and another by this vendor to the husband, on the same day, before the same notary and witnesses, and where the suit was by the wife to show the simulated character of the two sales. No one had purchased from the husband, or accepted a mortgage from him. But the husband had, died, and a judgment creditor of one of his heirs was claiming that a judicial mortgage had attached to the interest of this heir.
“The time at which” the notes sued on were acquired “plays no part in the decision of this ease. We have to deal, not with the notes, but with the condition of the property as it appeared of record.”
From the foregoing facts it is seen that the primary right upon the property in both parishes was in the plaintiff bank as holder of the Wallace mortgage, and that the secondary right upon the Jefferson Davis parish property was in Mrs. Garlick, as owner thereof by virtue of the dation en paiement made to her, and the secondary right upon the Allen parish property was in the plaintiff hank as holder of the second mortgage. Mrs. Garlick’s learned counsel argue that as an effect of her property being' taken to pay this Wallace mortgage she would be subrogated pro tanto to the rights of the plaintiff bank as holder of this mortgage, and, as such, would be entitled to take a corresponding amount out of the proceeds of the sale of the Allen parish property by preference over the second mortgage creditor, and hence that the balance left of the proceeds of the sale's of the two properties after satisfaction of the Wallace mortgage, is payable to her, as otherwise there would simply be a circuity of payments ; for after the proceeds of her property had gone towards paying the Wallace mortgage, she, as subrogee, would be entitled to come against the proceeds of the sale of the Allen parish property in a corresponding amount.
There can be no doubt at all that, under article 2161, O. G., Mrs. Garlick would be subrogated to this Wallace mortgage in so far as her property had gone towards paying it; but theré can also be no doubt that the plaintiff bank, as holder of the second mortgage, would, in like manner, be subrogated, under the same article, to this Wallace mortgage in so far as the Allen parish property had gone towards paying it, so that the two rights offset or nullify each other.
Of the plea of discussion contained in the answer, suffice it to say that the plea of discussion cannot be opposed to a creditor haying a special mortgage. G. G. art. 3404; O. P. art. 73.
We Lave to agree with that view. After funds Lave been paid to the seizing creditor it is too late for third persons to seek to intervene and claim them. Whether Mrs. Garlick might not Lave a right of action against the plaintiff bank for an accounting to her for that part of these proceeds to which she was thus entitled is another question, and one upon which we express no opinion, reserving to her, however, whatever rights she might have in that connection.
The judgment appealed from is therefore amended so as to make in favor of Mrs. Gar-lick the reservation of rights mentioned in this opinion, and, as thus amended, is affirmed; Mrs. Garlick to pay the costs of this appeal.
Rehearing
On Rehearing.
Our former decree in this case is reinstated and made the final judgment of the court.