Hyde v. Bennett

| La. | Sep 15, 1847

The judgment of the court was pronounced by

SniDEim, J.

This is an hypothecary action, in which the plaintiff prays that a tract of land in the possession of the defendants may be adjudged to be subject to a mortgage executed by Cockerille in favor of plaintiff, and that the defendants be ordered to surrender the property, that the same may be seized and sold to pay the plaintiff’s claim. The facts material to the decision of this case are, as follows: On the 10th June, 1834, Cockerille gave Hyde a mortgage on the land, for the sum of 554,604 16. This mortgage contains no pact de non alienando. It was recorded on the day of its execution. In 1840, Dominique Rachal recorded a judgment rendered in his favor against Cockerille. Upon execution of this judgment the land was sold, and the City Bank became the purchasers, on the 13th October, 1841. It was afterwards sold by the bank to McKnight. In 1842, Hyde obtained judgment against Cockerille for the balance due upon his mortgage claim, with a recognition of his mortgage, which judgment was recorded in May, 1842. The present action was brought iu September, 1844.

One of the grounds of defence is, that the plaintiff has lost his hypothecary right, by the failure to re-inscribe his mortgage within ten years. McKnight being a third possessor in good faith, the failure to re-inscribe must, under article 3333 of the Civil Code, be fatal to the plaintiff, (See the case of Shepherd v. Orleans Cotton Press Company, ante p. 100,) unless some of the reasons by which he endeavors to take his case out of the general rule be tenable. These we proceed to consider.

It is in evidence that Cockerille is a discharged bankrupt; and it is said that his bankruptcy relieved the plaintiff from the necessity of re-inscription. Art. 3326 of the Civil Code, and the case of Bethuny v. His Creditors, 7 Rob. 62" court="None" date_filed="1868-02-15" href="https://app.midpage.ai/document/clark-v-clark-8357290?utm_source=webapp" opinion_id="8357290">7 Rob. 62, are cited. It is unnecessary to enquire what would have been the rights of the parties, if CocJcerille had continued to be the owner of the land when he was decreed a bankrupt. The precise date of the decree of bankruptcy is not shown ; but it could not have been before 1st February, 1842, at which time the bankrupt law went into effect. In 1841, Cockerille had been divested of his ownership by tho sheriff’s sale to the City Bank,, and the subsequent bankruptcy cannot be considered as affecting the property.

But it is said that the plaintiff is saved by the institution of his suit against the mortgagor in 1842, at which time ten years had not elapsed from the inscription of the mortgage. The analogy of the rules of law regulating prescription is invoked. We had occasion to consider this subject very carefully in the recent case of McElrath v. Dupwy, ante p. 520, and our opinion remains unchanged, that the institution of suit does not arrest tho peremption of the- inscription. It is to be observed that the circumstances of the present case are even less favorable to the plaintiff, for McKnight was not a party to the suit against the mortgagor.

The analogy derived from the case of a suit for the recovery of land, which defeats an alienation made pending the action so far as concerns the plaintiff, is not sound ; nor, if it were, could it apply in the present ease, since Cockerille’s rights were divested, and the title under which the defendant holds was ac quired, before the institution of the plaintiff’s suit against the mortgagor.

But it is contended that the inscription of the judgment obtained by plaintiff in 1842, at which time the ten years had not expired, is equivalent to a re-inscription. A copy of the judgment was recorded. Its language is as follows: “It is decreed that the plaintiff recover of the defendant the sum of,” &c.; “ and it is further decreed that the plaintiff’s mortgage be recognized and affirmed on the property described in the petition; for the payment of the-above sum and interest,” &c. There is then no description of the mortgaged property; but a mere reference to the petition in the cause. Inscriptions must be renewed, says the Code, in the manner in which they are first made. Art. 3333. An inscription of a conventional mortgage must substantially describe the mortgaged property. It must be reasonably accurate and full in itself, so far as to inform the public what property is covered; and they are not to be referred elsewhere for information, which should be patent upon the public record. See the cases of Jartroux v. Dupeire, ante p. 608. Succession of Falconer, 4 Rob. p. 5. McElrath v. Dupuy, ante p. 520. See also as to the hypotheeary action against a third possessor, the case of Brou v. Kohn, 12 La. 104.

It is therefore decreed that the judgment of the court below be reversed, and that the're be a judgment in iavor of the defendants, with costs in both courts.