39 La. Ann. 932 | La. | 1887
The opinion of the Court was delivered by
This is an action to enforce a judicial mortgage against property belonging to the defendant banli.
The material facts as ascertained from the admission of the parties, are the following:
On March 20, 1878, Connell sold the property to Nowell for $4070, for which he issued his note due November 1st, 1879. The act was recoided.
On September 21st, 1878, following, plaintiffs obtained a judgment against Nowell for $2102.67 with interest and subject to a small'credit, which was recorded three days afterwards.
On December 10th, 1881, Nowell transferred the property to Payne, who had acquired the note, the consideration of the c( nveyance being the return of the note of the latter to the former.
On July 31, 3883, Payne transferred the property to Payne, Kennedy & Co., who, on February 11, 1887, conveyed it to the hank defendant herein.
The plaintiffs pray merely that their judicial.mortgage he recognized and enforced by the sale of the property, in default of abandonment of it by the bank. Their averments are denied and title is claimed by the defendant. The appeal is taken from a judgment adverse to plaintiffs.
The question presented is simply, whether the mortgage resulting from the registry of plaintiffs’ judgment against Nowell has continued to attach to the land, notwithstanding- the transfer of it by Nowell to Payne.
It is clear that, as the property stood in the name of Nowell at the date of the recording of the judgment, the judicial mortgage did affect it. R. C. C. 3328.
It is also clear that, had not Connell transferred the note and had he not been paid the same, he could have brought a suit to annul the sale and that the property would have returned to him free from the judicial mortgage in favor of plaintiffs. 19 L. 30; 3 Ann. 217; 6 Ann. 2; 12 Ann. 699; R. C. C. 2045, 2046, 2047, 2561; 8 L. 83.
The transfer of. the property by Nowell to Payne must not therefore be viewed as though made to Connell. 38 Ann. 583.
It consequently follows that the property has not passed free from the judicial mortgage, but that it was conveyed cam onere.
It has been held and properly too, that, even where a sale is annulled by agreement between the original parties, whatever its validity may be as to them, the retroversion does not necessarily affect third persons. Ricks vs. Goodrich, 3 Ann 217.
In a subsequent case, Mr. Justice Rost delivered an interesting and learned opinion in which it is distinctly reannounced that, where the retrocession is the voluntary act of the parties, the rights of third persons are not always affected thereby. Chretien vs. Richardson 6 Ann. 2.
In a more recent suit, decided by the present Court, the following language was used:
“If the parties desire to substitute the voluntary for the judicial rescission and to give to the former the extraordinary effect of revoking the contract ab initio and of obliterating all claims and privileges of third persons against the property, which may have been acquired during the possession of the purchaser, we are satisfied they were bound to comply, in their voluntary act, with all the requirements which the law would have imposed in the judicial proceeding. The purchasers had no authority to abandon or even to compromise the rights secured to them by law to the prejudice of a creditor who, by seizure or orthewise had acquired a privilege on the property.”
This exposition of the law rests on conservative principles, followed by all civilized nations. Sic utere tuo, etc. R. C. C. 11, 1989.
Had the sale, under judicial process, taken place and the property not realized more than enough to satisfy the vendor’s claim, necessarily the judicial mortgage would!have ceased to affect the property which would then have passed unincumbered to the adjudicatee.
Under the circumstances of this case, it is manifest that a fortiori the voluntary transfer does not affect such third persons, as it was made, not to the original vendor, but to one who was only a creditor for the unpaid price of sale and who had not been subrogated to the right of the vendor, to demand the nullity of the sale on account of non-payment of the price and the less so, as in this instance, suit had been brought to enforce payment, pending which the debtor transferred the property in consideration of the return of the note.
It is perhaps proper to stale that the suit brought to enforce payment liad been instituted by Payne, Kennedy & Co., a firm of which Payne was a ihember and for which he liad acted, and that, when the property was conveyed io him during the proceedings, it was in reality for account of the firm.
We therefore conclude that the judicial mortgage claimed by tbe plaiutiffs ought to bave been recognized and that, in default of a surrender of tbe property, or satisfaction of the debt, tbe judgment must be enforced by sale.
We do not pass upon any mortgage or other rights, if any, which may be asserted adversely to plaintiffs, as no issue on that subject was presented by tbe pleadings.
It is therefore ordered and decreed that tbe judgment, appealed from be reversed, and that there be now judgment in favor of tbe plaintiffs recognizing tbe judicial mortgage claimed by them on tbe land described, and that, in default of payment of that judgment or surrender of the property, the same be seized and sold, after compliance with all legal requirements, to satisfy the judgment in capital, interest and costs in both courts.
