Levy v. Mentz

23 La. Ann. 261 | La. | 1871

Ludeling, C. J.

Isaac Levy claims to be paid out of the proceeds of the sale of property mortgaged to defendant, on the ground that his mortgage is superior in rank to that of the seizing creditor.

The mortgage, under which Levy claims, originally granted to Gabriel L. Fusilier and other creditors of J. A. Frere, was recorded on the ninth day of September, 1846, and an act affirmative of and supplemental to the original act was inscribed in the book of mortgages on the ninth of September, 1850, and the original act of mortgage; was reinseribed on the eighth day of November, 1865.

The mortgage under which S. Theriat, defendant, claims was recorded on the fourth of February, 1861, and reinscribed on the eighteenth of April, 1870.

Hnder this state of facts it would seem clear that the plaintiff’s mort-' gage had perempted. “The effect of the inscription of mortgages., ceases even against the co. .racting parties, if the inscriptions have not been renewed before the expiration of ten years, in the manner in which they were first made.” C. C. 3369. And it is the “duty of the-Recorder of Mortgages, or person acting as such, to cancel and erase„ on the simple application in writing to that effect, by the owner, creditor of the owner, or other party interested, all inscriptions of mortgages which have existed or may exist on the records for a period exceeding ten years, without a renewal of such inscriptions,” etc. Acts of 1843; Revised Statutes, sec. 450,

We have been referred to a decision of the Supreme Court of "the United States, reported in 8 Wallace p. 299, in -which, that exalted tribunal held that, in Louisiana, knowledge of an existing mortgage was equivalent to, or dispensed with, registry; and the counsel for the opponent earnestly urges that we should follow their interpretation of the laws of Louisiana. It does not appear that the Supreme Court of the United States had their attention directed to article 3369 of the Civil Code, or to the amendment to article 3333. But, be that as it may, it seems well settled that in construing local statutes respecting real property, the federal courts are governed by the decisions of the State tribunals. Thatcher v. Powell, 6 Wheat. 119; 8 Peters 220; 9 Cranch 87; 5 Cranch 22; 16 Peters 455; 7 How. 812.

By the failure to reinscribo his mortgage within ten years after its recordation the plaintiff lost his rank, and the mortgage of the defendant took precedence over it. 21 An. 204; 21 An. 427; 22 An. 402. *

It is therefore ordered that the judgment of the lower court be affirmed, with costs of appeal.