Hart v. Caffery

39 La. Ann. 894 | La. | 1887

The opinion of the court was delivered by

Bermudez, C. J.

This is a suit via ordinaria, to enforce the payment of a mortgage note, executed on December 3, 1872, and secured hy mortgage by a notarial act, which was recorded on December 11 following in the Recorder’s office of Lafayette Parish, in which the property is situated.

Prom time to time the mortgagor, Perry .Moses, made payments on said note.

On March 3, 1880, plaintiff, as the holder of the note and the drawer thereof, liquidated the indebtedness. Five notes, for different amounts, aggregating the amount due, were furnished by Perry Moses, to represent the former note and to be secured by the mortgage by which the payment of said note was guaranteed, on the same property which was specially described, with the express stipulation that neither the original debt nor the first mortgage would be considered as novated, and that payment of the five notes would extinguish the note and mortgage of 1872.

On October 20, 1885, Perry Moses appears to have executed a mortgage in favor of J. H. Moses, to secure payment of an indebtedness on the same property.

This act, the validity of which was impugned, was recorded on October 25th following.

This second mortgage creditor intervened, claiming priority over plaintiff, on the ground that the original act of mortgage had not been duly reinscribed, in fact, has not been reinscribed at all, and that the original inscription having perempted, by the lapse of the ten years following it, the debt claimed by plaintiff, although due, has ceased to be secured by mortgage on the real estate originally encumbered.

There was judgment in favor of plaintiff for the amount of his debt, recognizing it as secured by mortgage, and dismissing the intervention.

The intervenor alone appeals.

It is unnecessary to pass upon the question of formal reinscription raised by the intervenor.

Admitting that the original act was never reinscribed, it is enough to entitle plaintiff to recover, that the amount which he sues for was acknowledged as due him, and that its payment-was secured by mortgage on the same property, which' was specially described in the act, and that the instrument, complete in itself, was duly recorded at a date anterior, years previous, to the inscription of intervenor’s act of mortgage.

The act subserves all the purposes which a technical reinscription would have accomplished, at least as concerns the first subsequent mortgage creditor.

Judgment affirmed.